Kalinic v Commissioner of Police, NSW Police

[2006] NSWADT 227

CITATION:	Kalinic v Commissioner of Police, NSW Police [2006] NSWADT 227
DIVISION:	General Division
PARTIES:	APPLICANT Daniel John Kalinic RESPONDENT Commissioner of Police, New South Wales
FILE NUMBER:	063109
HEARING DATES:	24/05/2006
SUBMISSIONS CLOSED:	05/24/2006
EXTEMPORE DECISION DATE:	05/24/2006
DATE OF DECISION:	08/01/2006
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Firearms Act - firearms licence - revocation of licence or permit - Firearms licence - revocation of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Firearms (General) Regulation 1997 Firearms Act 1996
CASES CITED:	Botros -v- Commissioner of Police, NSW Police Service [2000] NSWADT 6 Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50 Hill v The Commissioner of Police [2002] NSW ADT 218 Maloney v Commissioner of Police, New South Wales Police, 22 November 2004 unreported
REPRESENTATION:	APPLICANT In person RESPONDENT A Venditti, agent
ORDERS:	The Commissioner's decision to revoke Mr Kalinic’s Category AB firearms licence application is affirmed

1 Mr Kalinic has held a Category AB firearms licence since March 2003. The licence was revoked in September 2005. The decision to revoke his licence was affirmed on an internal review. He has now applied to the Tribunal for an external review of the determination. The matter was heard on 24 May 2006.

2 Following the hearing of this application I affirmed the Commissioner’s determination to revoke Mr. Kalinic’s licence. The Commissioner has requested written reasons for my decision. These reasons are provided in response to that request.

Background

3 Mr. Kalinic owns an isolated rural property near Kempsey NSW. The property is surrounded by state forest and is home to feral animals including wild dogs and cats. From time to time Mr. Kalinic has a need to control the feral animals and to put down animals in distress. His firearms licence was issued for the genuine reasons of target shooting and recreational hunting/vermin control.

4 In June 2005 Police obtained a search warrant in relation to Mr. Kalinic’s premises to allow them to search for cannabis plants. Police searched the premises and two hydroponically grown cannabis plants were located. Mr. Kalinic stated that he grew them for his personal use.

5 In August 2005 Mr. Kalinic was convicted in the Kempsey Local Court of ‘Cultivate prohibited plant’ and fined $200. He has an earlier drug related conviction and a conviction for ‘Goods in Custody’. His firearms licence was revoked in September 2005 as a consequence of his most recent conviction.

Applicable Legislation

6 Section 24(2)(a) of the Firearms Act 1996 (“the Act”) provides that the Commissioner of Police may revoke a firearms licence for any reason for which the licensee would be required to be refused a licence of the same kind.

7 Section 11(5)(b) of the Act states that a licence must not be issued to a person who 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.

8 Clause 5(b) of the Firearms (General) Regulation 1997 (“the Regulation”) provides:

5 Offences that disqualify applicants

For the purposes of sections 11(5)(b) and 29(3)(b) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales:

…

(b) An offence in respect of a prohibited plant or drug committed under:

(i) the law of any Australian jurisdiction, or

(ii) the law of any overseas jurisdiction (being an offence that, had it been committed in Australia, would be an offence under the law of an Australian jurisdiction).

9 Mr. Kalinic argues that the determination to revoke his licence is unnecessarily harsh in light of the offence for which he was convicted. He says that the $200 fine imposed by the Court suggests that the offence was considered to be relatively minor.

10 Mr. Kalinic says that he needs his licence because of the isolated nature of his property and the number of feral animals in the area. He says that he is almost solely responsible for the control of those feral animals. He also shoots at a local shooting range. He says that he regrets what he did and that there is no reason to believe that there is any risk to public safety if he were to be permitted to continue to use firearms.

The Commissioner’s case

11 Mr Venditti relied on the reasoning contained in the reasons for the internal review determination. The Commissioner points to the fact that this is not Mr Kalinic’s first offence or even his first prohibited plant or drug related offence. The Commissioner asserts that while the conviction related to two plants it is probable that other plants had been grown previously or that Mr Kalinic had intended to continue to grow other plants had the offence not been detected. Such an involvement in growing prohibited plants may lead to contact or involvement with other criminal elements of the community. As such, the public would hold concerns should he be allowed to continue to hold a firearms licence.

12 Mr Venditti submitted that the offence for which Mr Kalinic was convicted is prescribed by the Regulation. Persons convicted of a prescribed offence are precluded from holding a licence for a period of 10 years from the date of the conviction. He argues that the Tribunal has previously held that the inference drawn from this provision is that a conviction for a prescribed offence operates to remove the privilege to have a firearms licence as public safety is placed at risk.

13 Further, he says that the Tribunal has held that although the Commissioner has a discretion in this regard where the conviction occurred after the licence was issued, it would be an anomaly to allow a licensee to retain a licence when someone else with the same conviction would be refused one. Mr Venditti submitted that the discretion should only be exercised in a way not to revoke the licence in special or exceptional circumstances. He says that there are no such special circumstances in this case.

Findings

14 The role of the Tribunal is to determine, having regard to the relevant facts and the applicable law, whether the Commissioner's decision is the correct and preferred decision: section 63 Administrative Decisions Tribunal Act 1997.

15 Mr Kalinic’s convictions are not disputed. I accept that his property is surrounded by state forest and that he has used a firearm to control the feral animals that come onto his land and to put down animals in distress. He also used a firearm for sporting activities. If he is unable to use firearms he will be inconvenienced and will need to look for other ways to destroy stock or control vermin on his land. However, a decision maker should not shy from exercising discretion adversely to an individual merely on the grounds that they may suffer hardship and/or inconvenience: Hill v The Commissioner of Police [2002] NSW ADT 218 at paragraph 22.

16 The Act is to be interpreted narrowly and convictions are a relevant consideration in exercising discretion. The principles and objectives of the Act are set out in section 3. The underlying principles of the Act are to confirm firearm possession and use as a privilege that is conditional on the overriding need to ensure public safety and to improve public safety by imposing strict controls on the possession and use of firearms and by promoting safe and responsible storage and use of firearms.

17 The Commissioner relied on the material contained in the brief of evidence that he had filed and served in this matter. The brief of evidence included a report of an incident when police attended Mr Kalinic’s property and located cannabis plants and a hydroponics system used in their cultivation. The charges for which Mr Kalinic was convicted arose from a search warrant that was executed by the police.

18 In this case each of the grounds relied on by the Commissioner to revoke Mr Kalinic’s licence are discretionary. That is, these grounds, if established, give the Commissioner a discretion as to whether he should or should not revoke the licence. However, the provisions in sub section 24(2) of the Act do not give any guidance as to how that discretion should be exercised in each individual case.

19 In Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50 at paragraph [23] the Tribunal’s Deputy President stated that the discretion should be exercised in a way, which promotes the principles and objects of the Act. This approach has been adopted in numerous decisions of this Tribunal.

20 Parliament has also identified certain offences, which disqualify a person from being issued with a licence. That is, when considering an application for a firearms licence from an applicant who has been convicted of a prescribed offence the Commissioner is given no discretion. He must refuse the licence application.

21 In Botros -v- Commissioner of Police, NSW Police Service [2000] NSWADT 6 Skinner JM stated:

22 In this case if the applicant had committed the offence before applying for the licence granted on 4 March 1999, he would not have been granted that licence. The legislature has seen fit to ensure that that result would have been mandatory, and is mandatory for ten years from the date of the conviction.

23 It would be anomalous if despite the committing of a prescribed offence barely five weeks after the grant of the licence, the applicant were to retain his five year licence.

24 Conceivably some circumstances could justify such an anomaly. That is no doubt why the legislature in its wisdom has used the language of discretion in s 26(1) of the Act.

22 In Maloney v Commissioner of Police, New South Wales Police, 22 November 2004 unreported Higgins JM stated:

“In my opinion, the inference to be drawn from this provision is that a conviction for a prescribed offence operates to remove the privilege to have a firearms licence as public safety is placed at risk. Furthermore, that privilege is lost for a period of ten years following the conviction.

Although the Commissioner has a discretion in this regard where the conviction occurred after the licence has been issued, in my opinion, it will only be in special or exceptional circumstances where the discretion is exercised in a way not to revoke the licence.

…

However, Mr Maloney has also been convicted of offences in relation to possessing and cultivating cannabis, which are serious offences that Mr Maloney must have known were unlawful. As I have explained, these offences form a basis of a mandatory refusal of an application for a licence. This means that even if Mr Maloney's licence were to be restored, after 2007 when he would be required to re-apply for his firearms licence, the Commissioner would have no alternative but to refuse a renewal of his licence. As I have already said, in my opinion, Parliament has made it quite clear that conviction for such offences result in the loss of the privilege of having such a licence unless there are some special circumstances that justify a contrary decision. In my opinion, in this case there are no such special circumstances.”

23 In my view, this is the correct approach. It would be anomalous if a conviction, after the licence has been granted, is treated totally differently to a conviction before a licence application.

24 This is a difficult matter in that the Local Court has treated Mr Kalinic’s convictions as on the lower end of the scale. He received a $200 fine for an offence where the potential penalty is two years in gaol and five and a half thousand dollar fine. Nevertheless, the repercussions for Mr Kalinic as they relate to his firearms licence are very severe. I am satisfied that this is what Parliament intended.

25 The role of the Tribunal is to apply the law as it sees it. In my view, what Judicial Member Higgins has said in Maloney is correct. Therefore, I need to find some special circumstances if Mr Kalinic is to be permitted to retain his licence.

26 The special circumstances that Mr Kalinic pointed to are protecting the general fauna, the wildlife. These are the same types of circumstances that Ms Higgins considered in Maloney and which she found were not special circumstances. Mr Kalinic has an obligation to keep feral animals down but every landholder has that obligation. That obligation cannot be seen as anything special. Mr Kalinic does not have any livestock of his own. He might get some of his own in the future but he does not have them now.

27 Mr Kalinic has livestock that are on agistment on his property but I do not understand that he has any obligations to protect those livestock from feral animals. I can understand that he has a desire to do so but I cannot see a need.

28 I cannot see any special circumstance in this matter that would permit Mr Kalinic to keep the licence. It follows in my view that the Commissioner’s decision is the correct and preferable one. I therefore affirm that decision. I appreciate that this leaves Mr Kalinic without a licence for a long time for what has been found to be a very minor offence.

Order:

The Commissioner's decision to revoke Mr Kalinic’s Category AB firearms licence application is affirmed.