Kudrynski v Commissioner of Police, New South Wales Police Service

[2001] NSWADT 101

CITATION:	Kudrynski -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 101
DIVISION:	General Division
PARTIES:	APPLICANT Marion Kudrynski RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	013008
HEARING DATES:	27/04/2001
SUBMISSIONS CLOSED:	04/27/2001
DATE OF DECISION:	04/27/2001
BEFORE:	Rice 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:	Firearms (General) Regulation 1997 Firearms Act 1996
CASES CITED:	Cleofe -v- Commissioner of Police, New South Wales Police Service; Alpha Intelligence Securities Pty Ltd -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 2
REPRESENTATION:	APPLICANT In person RESPONDENT J Tunks, solicitor
ORDERS:	1. Decision under review affirmed; 2. No order as to cost.

1 In my view, the correct and preferable decision is that the Mr Kudrynski's license should be revoked.

2 This is not because of the fact of the conviction, nor is it because the conviction was for unlicensed possession in Victoria. Licensed or not, in my view, the circumstances that gave rise to the conviction are directly relevant to the safe storage of firearms.

3 Briefly stated, Mr Kudrynski drove from Sydney to his property in Nimmitabel, on route to Melbourne. He was driving with his wife and daughters. He had in the car a shotgun and ammunition. Having used his gun at the property he stored it in a sleeping bag in the rear of the car for the drive to Melbourne. He did not leave it in the firearm container at the property. The shotgun, though secured with a safety catch, had shells in the magazine, and more ammunition was loose in the rear of the car and in the glove box. He had made no arrangements for its storage on Melbourne. He had planned to disassemble it and leave the parts in the car and his accommodation in Melbourne overnight, and then to find a local gunsmith with whom he could leave it during his visit.

4 Mr Kudrynski, in my view, didn't take adequate precautions for public safety in the manner he transported a firearm on that occasion, or in the arrangements he made for the safe storage in Melbourne of the firearm.

5 Mr Kudrynski has a container at his property which, because of break-ins and thefts, he has rendered effectively inaccessible. That cannot be an explanation for his conduct in travelling to Melbourne with the firearm as he did. Mr Kudrynski asks what more he can do other than install the container as he has done; it seems to me that he could make proper use of it.

6 There is only one incident that has given rise to the Commissioner's concerns about safe storage, and Mr Kudrynski has been licensed for many years. Consistently with the decision in this Tribunal in Cleofe, that one incident is sufficiently serious to grant revocation under the very strict firearm laws in place in New South Wales.

7 In any event, there is in my view, a real possibility that the conduct would recur. Mr Kudrynski says he was unable to do other than he did in travelling to Melbourne, and he seems to me in giving his evidence to be content that the measures he took were appropriate, sufficient and perhaps even necessary in the circumstances. In my view, that is enough to indicate a real possibility that the conduct would recur.

8 I am aware of Mr Kudrynski's and his neighbours' need for the control of, among other things, feral pigs.

9 The New South Wales firearms legislation is strict and, I acknowledge, even harsh in some circumstances in that it does not take account of the subjective circumstances of an applicant, no matter how persuasive they might be, unless perhaps those circumstances can themselves be considered as part of the public interest.

10 Even if that was the case, Mr Kudrynski's circumstances cannot be said to be persuasive even if they are in the public interest. There is no question of his livelihood being at risk and, contrary to Mr Kudrynski's view, there are other options to address the problem of feral pigs, such as engaging someone with a firearms licence.

11 In terms of the Firearms Act, and having regard to the relevant material and the applicable law, I am satisfied that Mr Kudrynski is not a fit and proper person to be trusted to have possession of fire arms without danger to public safety or to the peace within the meaning of section 11(3)(a) of the Firearms Act.

12 I am satisfied that the storage and safety requirements relating to fire arms are not capable of being met by the applicant in terms of section 11(3)(c) of the Firearms Act, and in terms of the Firearms Regulation clause 17 I am satisfied that it is not in the public interest for Mr Kudrynski to continue to hold the license.

13 Accordingly, the correct and preferable decision is to revoke the applicant's license under section 24(2)(a) and section 24(2)(d) of the Firearms Act.

14 I affirm the decision under review. I make no order as to costs.