Krake v Commissioner of Police, New South Wales Police Service

[2003] NSWADT 112

CITATION:	Krake v Commissioner of Police, New South Wales Police Service [2003] NSWADT 112
DIVISION:	General Division
PARTIES:	APPLICANT Michael Dial Krake RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	023196
HEARING DATES:	21/11/2002, 15/01/2003
SUBMISSIONS CLOSED:	02/11/2003
DATE OF DECISION:	05/19/2003
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	Firearms Act - firearms licence - issue of licence or permit - Firearms licence - issue of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Crimes (Sentencing Procedure) Act 1999 Firearms (General) Regulation 1997 Firearms Act 1996
CASES CITED:	Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 McDonald v Director General of Social Security (1984) 1 FCR 354
REPRESENTATION:	APPLICANT In person RESPONDENT C McGoldrick, agent
ORDERS:	1 The Commissioner's decision to refuse Mr Krake's application for a Category A firearms licence is affirmed.

1 These proceedings relate to a decision by the Commissioner of Police, New South Wales Police Service (“the Commissioner”) to refuse an application for a firearms licence by Mr. Michael Krake.

2 Mr. Krake applied for a Category A firearms licence on 19 November 2001 and it was initially recommended that the licence be issued. It subsequently came to the Firearms Registry's attention that Mr. Krake had been found guilty of an offence involving firearms.

3 As a result, a decision was taken to refuse Mr. Krake’s application. On 3 June 2002, a Refusal Notice was sent to Mr. Krake together with a Statement of Reasons for the decision.

4 On 15 July 2002 Mr. Krake requested an internal review of that decision to refuse his application. The internal review was finalised on 26 July 2002 and the decision was made that the Commissioner's decision to refuse Mr. Krake’s licence application is to stand. The Commissioner's delegate gave detailed reasons for the decision and Mr. Krake was notified of the outcome of the review and those reasons.

5 Mr. Krake operates a farm located near Wentworth NSW. Mr Krake has not held a firearms licence since around 1989 but it is not in dispute that he has used firearms on his farm for many years. The primary reason for using the firearms is to deter feral cats.

6 On 27 July 2001, Police attended Mr. Krake’s property because they had received certain information which caused them to be concerned for Mr. Krake’s welfare and that of his wife. These concerns were proved to be unfounded but the police visit had consequences which led to these proceedings.

7 The police searched the property and located two firearms. A .22 rifle and a magazine containing ammunition were found in the lounge room and a double barrel shotgun was found nearby but outside the house. Two cartridges were found adjacent to the shotgun.

8 The firearms were not registered and the storage facilities did not meet the requirements of the applicable legislation. Police took possession of the firearms and Mr. Krake was charged with offences.

9 On 4 October 2001 Mr. Krake appeared before the Wentworth Local Court on two charges of 'Possess unauthorised firearm' and two charges of 'Not keep firearm safely'. The offences were found proved but were dismissed pursuant to Section 10 of the Crimes (Sentencing Procedures) Act 1999.

Reviewable decision

10 The reviewable decision is that confirming the Commissioner’s decision to refuse Mr. Krake’s firearms licence application. On 29 August 2002 Mr. Krake applied to this Tribunal for review of the Commissioner's decision. The matter was listed before the Tribunal’s President on 2 October 2002 at which time he made directions for the filing of documents and the matter was listed for hearing in November 2002. The matter proceeded on 21 November 2002 and the hearing was conducted by telephone. Each party was given an opportunity to file written submissions following the hearing and a decision was the made on the basis of material filed unless a request was made to have the matter be listed. Mr Krake made such a request and the matter was relisted for further hearing on 15 January 2003. The decision was reserved on that day.

Nature of proceedings

11 The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all the material first considered, together with any further relevant material, so as to either confirm the original decision, vary it, or set it aside and substitute another. “The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view was objectively the right one to be made” (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77).

12 These are not adversarial proceedings in which Mr. Krake carries an onus of proof. Mr. Krake, by making the application, triggers a process of merits review by the Tribunal. Mr. Krake does not take on the responsibility of having to prove a case, nor does he cause the Commissioner to have to prove a case. Mr. Krake and the Commissioner are before the Tribunal as parties by virtue of section 67(2) of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”).

13 Section 63(1) of the ADT Act provides that in determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. It makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct (McDonald v Director General of Social Security (1984) 1 FCR 354 at 357).

14 When there is a fact in issue as to the existence of which the Tribunal must be satisfied, it must be satisfied to the civil standard of proof, that is, on the balance of probabilities (McDonald at 357).

Applicable Legislation

15 The relevant provisions of the Firearms Act 1996 (“the Act”) are found in sections 11, 39 and 40. Clauses 5 and 7 of the Firearms (General) Regulation 1997 are also applicable. As so far as relevant to these proceedings sections 11 of the Act provides:

“11 General restrictions on issue of licences

(1) The Commissioner may issue a licence in respect of an application, or refuse any such application.

(2) A licence must not be issued until after the end of the period of 28 days following the day on which the application is made.

(3) A licence must not be issued unless:

(a) 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, and
(b) in the case of a person who has never held a licence (including a firearms licence under a previous Act), the applicant has completed, to the satisfaction of the Commissioner, such firearms training and safety courses as are prescribed by the regulations in respect of the licence concerned, and
(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
…
(7) The Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

(8) The regulations may provide other mandatory or discretionary grounds for refusing the issue of a licence.”

16 Sections 39 and 40 in Part 4 of the Act relate to the safe keeping of firearms. These sections provide:

“Part 4 Safe keeping of firearms

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.
Maximum penalty: 50 penalty units or imprisonment for 2 years, or both, if it is established beyond reasonable doubt that the firearm concerned was a prohibited firearm or a pistol, or 20 penalty units or imprisonment for 12 months, or both, in any other case.

(2) The regulations may specify the precautions that are taken to be reasonable precautions for the purposes of this section.

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.


Maximum penalty: 20 penalty units or imprisonment for 12 months, or both.

(2) A licensee does not have to comply with the requirements of this section if the licensee satisfies the Commissioner that the licensee has provided alternative arrangements for the storage of firearms in the licensee's possession that are of a standard not less than the requirements set out in this section.

17 Clause 5 of the Firearms (General) Regulation 1997 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:

(a) Offences relating to firearms or weapons

An offence relating to the possession or use of a firearm, or any other weapon, 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).”

18 Clause 7 of the Firearms (General) Regulation 1997 provides:

“7 Licence applicant's understanding of requirements concerning firearm safety and storage

Before being issued with a licence, the applicant must prove to the Commissioner's satisfaction:

(a) that the applicant is aware of, and understands, the requirements of the Act concerning firearm safety and storage, and
(b) that the applicant will, if issued with a licence, be able to comply with those requirements.”

19 Mr. Krake presented evidence on his own behalf. Ms Gaye Lamb, Mr. Krake’s wife, also gave evidence and appeared as an advocate on Mr. Krake’s behalf. Evidence as to Mr. Krake’s background and good reputation was given by Mr. Andrew Boofin and testimonials to similar effect were provided by Mr. Warren Ward, Ms Anne Kiely, Ms Robin Giggings, Mr Jim Porker, Mr John O’Connell, Mr Tony Walker, Ms Jan Denham, Mr Peter Middleton and Mr. Bruce Smith. Each of Mr. Krake and Ms Lamb provided written statements and they provided detailed submissions in support of Mr. Krake’s case. While he disputes some of the details presented in the Commissioner’s chronology of events, Mr. Krake agrees with the majority of the chronology presented.

20 Mr. Krake argues that the police attended his property on 27 July 2001 out of concern for his wife's welfare. This arose from her being extremely distressed during a phone call to a government department in Melbourne and not from any concerns that she was in danger from Mr. Krake. Mr. Krake asserts that his usual storage arrangement for the past 25 years followed safety practices. He has never left any firearm in a loaded state unattended. When the police visited his property the .22 rifle was standing in an upright position in a corner of the lounge-room while the magazine containing one shot was not in the rifle but rather on a shelf elsewhere in the room. He stated that the shotgun was 20 metres from the backdoor of the house between bags of fertilizer and that it was visible from the backdoor.

21 Mr. Krake argues that he requires a firearm to control feral cats on a mixed organic horticultural property. He states that the use of birds is an integral management tool for pest control and providing biodiversity in organic fruit and vegetable production. The use of poultry as "chook tractors" is an extension of weed, pest and disease control in organic farming as well as providing a source of fertiliser. He also proposes to develop egg production on his property however this is threatened by the presence of feral cats. These eggs could be sold through an organic retail shop in Mildura and this would be able to increase the household income by $85 to $100 per week.

22 Mr Krake’s evidence is that the Wentworth Shire Council has numerous times refused to travel as far as his property to trap or exterminate feral animals. He argued that the only humane way to eradicate these animals is by a gun shot directly to the head.

23 Mr. Krake stated that he regrets that he had not completed the licensing and registration of the firearms, but thought that he had the duration of the amnesty to complete the safety requirements. He said that while he was unsure of the specific dates, there had been a range of amnesties and licence provisions since 1988 that provided him as a primary producer with an exemption for that period. He said that his confusion in this regard is a result of the fact that as most of the public information he received on the subject originated in Victoria.

24 Mr Krake said that in early March 1988 he attended the local Wentworth Police Station to renew his firearms licence but was informed that there was a temporary moratorium on issuing licences until new rules were determined. He was told that his existing licence would be valid until then and he was instructed to return in 12 to 18 months. In May 1989 he was informed that as a primary producer he did not require licensing for the next 5 years. This was subject to the provisos that: a) he only used the firearms for vermin control on his own property; b) they could not be left in a loaded state; c) each magazine could only hold a maximum of five pieces of ammunition; and d) he was not involved in any incidences of violence.

25 Mr. Krake argues that the allegations of being unlicensed are therefore unfounded, as there has been a range of ongoing amnesties and special allowances for Primary Produces. He also argued that he adopted normal safety practices of locking up the firearms when not in use and that it has always been his intention to complete the safety and licensing requirements.

26 Mr. Krake stated that prior to these proceedings he was unaware that alternative arrangements for storage could have been sought. He said that he would have only needed minimal alterations to his previous storage to meet the criteria, and the ceiling storage would have allowed him to bypass the replacement of windows and doors.

27 Mr. Krake argues that the Local Court Magistrate recorded no conviction against him. He also argued that the initial refusal of his application was based on inaccurate Police records, which indicated that the firearms were loaded. He stated that his usual storage arrangements for his firearms complied with the principles and objectives of the Act. He never left a firearm in a loaded state and the ammunition is usually kept in a separate locked apparatus.

28 He said that while he is usually extremely careful about putting the firearms away, he and Ms Lamb had been under financial stress for several years, and then had the added stress on that day of not knowing whether their fruit would be able to be transported to market. The GST was having a major impact, as he needed to install completely new marketing, recording and farm management systems. He said that the ATO holds 10% of the cash flow of fresh food producers and at that time held four months of his rebates. It was uncertain whether the GST rebate would be paid in time to allow them to address some pressing obligations. These financial difficulties were exacerbated by health issues being experienced by Mr Krake and several family members.

29 He stated that he was unaware of his firearms being seized because Ms Lamb had not immediately informed him. The house area was not left unattended for any considerable length of time. The lack of supervision was not intentional and was a complete aberration from normal procedures. Due to the isolation and the fact that the house and production areas are hidden from view, even at night, it is extremely rare for uninvited people to attend the property.

30 Prior to applying for the firearms licence Mr. Krake attended the local accredited Firearms Safety Officer, studied the Safety Handbook and Video, and completed the test. He also ordered a firearms storage locker.

31 Mr. Krake asserted that his attitude toward safe storage is reflected in his 25 years of safety practices. While he did not have a steel locker at the date of the incident, he said that he has taken substantial steps within his financial capacities, and at considerable personal sacrifice, to complete the security requirements.

The Commissioner's case

32 The Police Service’s file was put in evidence and the Commissioner relied on the documents contained within that file. The Commissioner’s case is essentially that outlined in the reasons provided following the internal review. With the exception of the particular circumstances of the case, there is no general suggestion that Mr. Krake is not a person of good character. However, the Commissioner considers that there is a public interest issue to be considered and that the interest of public safety must outweigh any personal interests that Mr. Krake might have in possessing his firearms.

33 In so far as they are relevant to these proceedings, the reasons given following the internal review and upon which the Commissioner relies provided:

“ As a result of the incident on 27 July 2001 you were summonsed to appear before the Wentworth Local Court for the offences of 'Possess unauthorised firearm' and 'Not keep firearm safely '. I note that on 4 October 2001 those offences were found proved but the presiding Magistrate chose not to proceed to conviction and instead dismissed you pursuant to Section 10.

The principles and objectives of the Act are to confirm that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety by imposing strict controls on the possession and use of firearms. Section 19(2)(a) and 40 of the Act provide express requirements as to how that objective is to be met in regard to safe storage. That is, a condition of the licence is that the firearms are to be stored safely in the manner prescribed. The ADT has expressly stated that these are fundamental requirements to be upheld by licensees.

I note your claims as set out in your Statutory Declaration and, it seems to me that you are justifying the unsafe-keeping of your firearms as safe and acceptable. However, it is clear that Parliament has identified the safe storage of firearms as a central and critical objective of the legislation. Further, as is made clear from Part 4 of the Act, Parliament did not leave the manner in which firearms are to be stored to the discretion of licence holders but instead elected to impose detailed and prescriptive requirements on all licences.4 Considering this view, I am of the opinion that you do not place the required level of importance on the manner in which firearms are to be stored, when not in use.

Accordingly, I am satisfied that you have clearly acted contrary to this central and critical objective of governing firearms legislation and I am not convinced that you fully understand and appreciate safekeeping (of firearms and ammunition) conditions required to be met by persons wishing to be issued with a firearms licence. Further, no evidence has been provided to show that you have the required storage facility in place to store firearms in your possession.

In addition to this point, and which is of substantial importance, is the fact that you were not licensed to possess firearms and further, the firearms in your possession were not even registered. This, in my view, demonstrates a lack of regard for the guidelines and laws governing the licensing of firearm possession and use within New South Wales and again suggests to me that you place little or no importance on it.

Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them they also must act in accordance to the same.

When considering an individual's right to be granted a licence under the Act, I have formed the view that any decision should be made on the basis that the legislation has quite clearly been enacted to improve public safety, which incorporates excluding persons who have been found guilty, but with no conviction recorded, of offences involving firearms.

Therefore, notwithstanding the fact that you were not convicted of the offences involving firearms, when considering that the underlying principles of the Act is to improve public safety by imposing strict controls on the possession and use of firearms, I am not confident that, if you were granted the privilege of a firearms licence, you would act in accordance with the fundamental requirements imposed with respect to the possession, use and safekeeping of firearms.”

34 In addition to those reasons, Mr. McGoldrick filed written submissions. Those submissions were consistent with arguments presented in the written reasons and at the hearing. The Commissioner contends that the issue of a licence to Mr Krake would be contrary to the public interest, as Mr Krake has failed to comply with the principles and objectives of the Act and has also been found guilty of four breaches of the Act.

35 Mr. McGoldrick argued that Mr Krake had conceded in evidence that rather than police, it could have been someone with "foul intentions" who found his firearms. Further, Mr Krake’s evidence was that whilst it is rare for strangers to enter his property, it has happened over the years. It is something that could happen at any time, particularly given the proximity of the public waste disposal site.

36 Mr. McGoldrick submitted that firearms unsafely stored in this manner present a number of grave risks to the public. They may be used in the commission of crimes of violence such as armed robbery or murder, or contribute to an accidental or deliberate death through misadventure or suicide.

37 It is for this reason that the circumstances of that day, and the manner in which the firearms had been stored previously must be viewed seriously when considering whether it is in the public interest for Mr Krake to be issued with a firearms licence. It is submitted that there cannot be confidence there will not be a recurrence of a failure to ensure safekeeping of firearms.

38 Even if the failure to ensure safekeeping of the firearms on 27 July 2001 was a "one-off" event caused by the extreme financial situation and high level of stress that Mr Krake was under that day, similarly stressful financial situations can be expected to arise again in the future. It is not unreasonable to expect that a similar safety breach could be repeated.

39 Mr. McGoldrick referred to Mr Krake’s evidence that he thought he had until August 2001 (when he believed the Firearms Amnesty expired) to comply with the licence, registration and safekeeping requirements of the Act. However, the amnesty only operated to allow Mr Krake to surrender his firearms to police. Retaining them, or getting them registered, or providing the safekeeping required, were not alternatives available to him as he was unlicensed for the Category A firearms in his possession. Mr. McGoldrick referred the Tribunal to the second reading speech by Mr. Whelan, then Minister for Police, on the introduction of the Firearms Amendment (Trafficking) Bill on 6 June 2001. Mr. Whelan stated at page 14531:

"As I announced in my second reading speech, this bill will be accompanied by an amnesty. I can now advise the House that the amnesty will allow the surrender of both prohibited and non-prohibited firearms to police. In addition, the amnesty will include a registration amnesty. This will allow persons who already have licences to register firearms. Those persons have clearly demonstrated their willingness to abide by the laws of the State by obtaining firearm licences. It is consistent with the objectives of the Firearms Act that those persons be encouraged to register any remaining firearms in their possession. However, I cannot and will not introduce a retrospective amnesty to allow those persons who fall completely outside the legal licensing system to obtain both a licence and to register firearms. The surrender of firearms will be the only legal option for such persons.'

40 Mr. McGoldrick further argued that Mr Krake had not held a firearms licence for 15 years. He submitted that from this it might well be inferred that Mr Krake has for a long time demonstrated deliberate disregard for the laws governing possession and use. It is unlikely that Mr Krake would have provided for safe storage, done a Firearms Safety Course, registered his firearms, or applied for a licence had the events of 27 July 2001 not occurred.

41 Given Mr Krake demonstrated breaches of the Act on 27 July 2001, and his failure to take any steps to comply with the Act in the years before, the Commissioner submits that it is not in the public interest that a licence be issued because the public interest is that only persons who have and will uphold the objects and principles of the Act be granted that privilege. It is further submitted that in this case, the correct exercise of the discretion embodied in section 11(7) of the Act is to refuse to issue a licence to Mr Krake.

Findings

42 In this application, I have considered all of the evidence and the oral argument presented before the Tribunal. In particular I have had regard to the following issues:

- Mr Krake had been in possession of the two firearms in question (double barrel shotgun and 22 calibre rifle) for over 25 years.

- Mr Krake has not held a firearms licence for some 15 years.

- Mr Krake had not registered the firearms.

- Mr Krake had at no time stored the firearms in accordance with the requirements of the Act.

- On 27 July 2001 the firearms were each left in such a position that the attending police located them as they looked around Mr Krake’s property.

- Each firearm had ammunition for it in close proximity.

- Mr Krake had left the firearms and ammunition unattended for two hours. Mr Krake was not aware that police vehicles containing seven officers had attended his property and seized the firearms and ammunition. Thus he was not exercising any supervision of the firearms.

43 The principal issue that I have to decide is whether there is a risk to the safety of the public if Mr. Krake is granted a licence. Mr Krake has breached certain provisions of the Act in relation to storage and possession of unregistered firearms even though he was not convicted of those offences. Part 4 of the Act provides for the safekeeping of firearms. The general requirements are set out in s 39 which relevantly provides that 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.

44 Section 11 of the Act gives the Commissioner (and the Tribunal) a wide discretion to refuse a licence if the Commissioner is not satisfied that an applicant meets various requirements under the Act or the Regulation. The subject matter of Mr. Krake’s contraventions is a highly relevant consideration. In this case the contraventions related to possession of unregistered firearms and their storage in a manner which fails to comply with the legislative requirements. Since these breaches erode the protection of public safety, there would need to be other persuasive considerations before the Tribunal felt able to set aside the Commissioner's decision to refuse the licence application.

45 I note that Mr Krake indicated that he had good intentions in regard to the registration of the firearms, that he maintains that he has always stored his firearms safely and that he has purchased a storage cabinet that complies with the legislative requirements. I also note his evidence about advice he was given in regard to renewing his licence and the various amnesties.

46 With respect to Mr. Krake’s confusion regarding the amnesties, I note that there were extensive media campaigns that advised to the general public of NSW when the NSW Police Service were conducting gun amnesties. From 12 July 1996 there was a well publicised amnesty and buy-back scheme, which ran for a period of approximately twelve months. This amnesty was put in place to enable gun owners to become licensed and to have their firearms registered. A large advertising campaign was mounted to ensure the general public was aware of the requirements. There was ample opportunity for Mr. Krake to have his firearms registered. I have difficulty in accepting that Mr. Krake could not have reasonably been expected to be aware of his obligations in regard to the registration of the firearms.

47 It is clear from the legislation that Parliament has identified the safe storage of firearms as a central and critical objective of the legislation. Parliament did not leave the manner in which firearms are to be stored to the discretion of licence holders but instead elected to impose detailed and prescriptive requirements on all licensees. Mr. Krake’s offences must be viewed with reference to the principles and objects of the Act. In this case it could be said that Mr. Krake has acted in complete disregard of the statutory requirements to safely store his firearms.

48 The issue that remains is therefore whether the actions that Mr. Krake has taken since July 2001 establish persuasive and relevant considerations to offset the gravity of his conduct in disregarding the statutory requirements regarding registration and safe storage of his firearms. I note that Mr Krake indicated that he had good intentions in regard to the registration of the firearms and that he has purchased an appropriate storage cabinet. I also note the extra security precautions that he has taken in relation to his property. In my view these are significant steps on Mr Krake's part.

49 I note that Mr. Krake has undertake a course in safety awareness. I am concerned however at the lack of depth in the approved course. Mr Krake stated that:

“On Sunday 6.10.2001 we attended the house of Harry Mangan, the local accredited Firearms Safety Officer. I spent about an hour studying the Safety Handbook and Video, then completed the test.”

50 The lack of depth to this training does not give me confidence that he now has the requisite degree of knowledge that could be expected of somebody who seeks to obtain a firearms licence.

51 Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them.

52 Having weighed the evidence, it is my view that that the gravity of the fact that Mr Krake chose to disregard his responsibilities and ignore the basic licensing and safety requirements of the Act outweighs the other relevant factors.

53 Taking account of the competing considerations, I cannot be satisfied that Mr Krake poses virtually no risk to public safety. While almost two years have passed since the incident which has eventually lead to these proceedings, I cannot as yet be satisfied that sufficient time has passed since that incident or that Mr. Krake has otherwise taken sufficient steps to acquire the knowledge that would be necessary for the public to be comfortable with Mr. Krake holding a firearms licence. It follows in my view that the correct and preferable decision is to refuse Mr. Krake’s application for a firearms licence. Accordingly I affirm the Commissioner's decision. I note however that the situation can change if Mr. Krake takes steps to address my concerns. Should Mr. Krake then choose to reapply for a firearms licence, the Commissioner may well reach a different conclusion.

Orders

The Commissioner’s decision to refuse Mr. Krake’s application for a Category A firearms licence is affirmed.