L'Estrange v Commissioner of Police, NSW Police Force
[2008] NSWADT 184
•25 June 2008
CITATION: L'Estrange v Commissioner of Police, NSW Police Force [2008] NSWADT 184 DIVISION: General Division PARTIES: APPLICANT
RESPONDENT
Jason L'Estrange
Commissioner of Police, NSW Police ForceFILE NUMBER: 073298 HEARING DATES: 23 January 2008 SUBMISSIONS CLOSED: 23 January 2008
DATE OF DECISION:
25 June 2008BEFORE: Grotte E - Judicial Member CATCHWORDS: Firearms Act - firearms licence - issue of licence or permit MATTER FOR DECISION: Principal matter LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Firearms Act 1996CASES CITED: Wiltshire v Commissioner of Police, New South Wales Police (2005) NSWADT 75
Uzelac v Commissioner of Police, Ministry of Police (2003) NSWADT 226
Hart v Commissioner of Police, NSW Police Service (2003) NSWADT 114
Kalinic v Commissioner of Police, New South Wales Police (2006) NSWADT 227
Phegan v Commissioner of Police, New South Wales Police (2002) NSWADT 127
Vella v Commissioner of Police, New South Wales Police (2003) NSWADT 91
Moody v Commissioner of Police, New South Wales Police (2002) NSWADT 146REPRESENTATION: APPLICANT
RESPONDENT
S Mainstone, solicitor
S Sheather, agentORDERS: The decision of the Commissioner of Police under review is affirmed.
REASONS FOR DECISION
Background
1 Jason L’Estrange was issued with a Category ABC firearms licence under the Firearms Act 1996 (the Act) for the genuine purpose of primary production on 21 January 1999. This was due to expire on 2 March 2004. Mr L’Estrange reapplied for the licence and, following an audit by the Police regarding the safekeeping provisions, it was reissued on 25 October 2004 with an expiry date of 2 March 2009. This licence was revoked on 23 August 2007. The revocation was the subject of an internal review.
2 On 27 December 2006 the police attended Mr L’Estrange’s address because it had been alleged that he had assaulted his former partner, Christine L’Estrange. The Police claim they questioned Mr L’Estrange about the presence of firearms while he was lying on his bed. It was alleged by the Police that Mr L’Estrange denied there were any firearms, but upon investigation, the Police found a .303 rifle in a cupboard in the room. The bolt of the rifle was in a drawer next to the cupboard. It was also alleged that Mr L’Estrange told the Police that his firearms were stored at a property owned by his sister at Mingendee. The Police attended that property with Mr L’Estrange where they found 8 firearms in a firearms safe. Four of these were unregistered. Ammunition and a speargun were also located in the same safe and a paintball pistol was located in a drawer within the same room. Mr L’Estrange was charged with common assault, four counts of possession of unregistered firearms and one count of not keeping a firearm safely.
3 On 28 December 2006 an Interim Apprehended Violence Order was placed on Mr L’Estrange for the protection of his former partner. This Order was extended three times on 16 January 2007, 3 April 2007 and 8 May 2007. The Order expired on 3 July 2007.
4 On 3 July 2007 Mr L’Estrange appeared at Condobolin Local Court charged with certain offences.
5 The common assault charge was dismissed but the firearms charges were found proven.
6 The Commissioner’s decision to revoke Mr L’Estrange’s licence was based on the following:
7 The Commissioner considered that in all the circumstances, the public would not be able to rightly trust Mr L’Estrange to adhere to the law on the basis that the breaches relating to authorisation to possess firearms and registration and safekeeping of firearms were fundamental and not trivial.
(a) Mr L’Estrange is a person authorised to possess firearms for a relatively lengthy period and as such, should have been aware of the need for strict adherence to the requirements as a licence holder. Mr L’Estrange had previously complied with the legislative requirements in March 2004. The Administrative Decisions Tribunal (the Tribunal) has held it is insufficient to merely be aware of the safety requirements. A licence holder must also act in accordance with the legislative requirements.
(b) It was significant that although some of the firearms were locked in a safe, the keys to the safe were located in a wardrobe in the same room, making them easily accessible. Additionally, ammunition was stored in the same place as the firearms and there were four unregistered firearms and an unregistered paintball pistol.
(c) Mr L’Estrange demonstrated a clear disregard for the requirements of the legislation and there was no evidence that he understood the serious nature and his offences. It was considered Mr L’Estrange had been untruthful and uncooperative with the Police during the investigation of the firearms breaches. He initially denied the firearm the Police found was in the bedroom and then he said that he had forgotten about it, because he had purchased it only 6 days before the incident.
(d) Additionally, consideration was given to the fact that on 5 April 2000 Mr L’Estrange was found guilty of “drive with middle range PCA” although the charge was dismissed without conviction and to the fact that on 24 January 2002 Mr L’Estrange was convicted of “behave in offensive manner in/near public place/school”.
8 Mr L’Estrange has applied to the Tribunal for a review of the Commissioner’s decision to revoke his licence.
Applicable Legislation
9 Section 24(2(b)(ii) of the Act provides that the Commissioner may revoke a firearms licence if the licensee contravenes any provision of the Act or the Firearms Regulation 2006 (the Regulation), whether or not the licensee has been convicted of an offence for the contravention.
10 Section 19(2)(a) of the Act imposes a requirement to comply with the relevant safekeeping and storage requirements as a condition of Mr L’Estrange’s licence.
11 Section 24(2)(b)(iii) of the Act provides that the Commission may revoke a firearms licence if the licensee contravenes any condition of the licence.
12 Section 24(2)(d) of the Act provides that the Commission may revoke a firearms licence for any reason prescribed by the Regulations.
13 Clause 19 of the Regulation provides that a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is issued to continue to hold it.
Mr L’Estrange’s Evidence
14 Mr L’Estrange relied on a number of testimonials from the following people attesting to his good character as well as providing supporting evidence:
15 Mr L’Estrange also relied on the transcript of the proceedings relating to the common assault charges and firearms charges at Condobolin Local Court on 3 July 2007.
Paul Sydenham, Branch Manager for Elders Ltd and Licensed Stockstation Agent;
P S Reardon, Director and Licensee of the Royal Hotel, Condobolin
Madelon Goodworth, Licensee, Imperial Hotel, Condobolin
Gregory Cooper, Condobolin Hotel
Tony Gross, Chairman, Condobolin Rural Lands Protection Board
Debbie Sutherland
Bruce Stonestreet
Marcelle May
Robert L’Estrange
Elayne Seaton
Jean Markwort
Bill Cooper
16 At the Tribunal hearing Mr L’Estrange gave oral evidence. He told the Tribunal that when the Police arrived at his home on 27 December 2006 to investigate the alleged assault on his former wife, he was asked whether he had a gun. He said that he did not and he denied assaulting his wife. He was handcuffed and read his rights. He claims he told the Police that his wife had broken the door but he felt the Police did not properly investigate the incident. The Police searched his cupboard and found a gun. Mr L’Estrange told the Tribunal he had no intention of harming anyone with the gun and in any event, there was no ammunition in the cupboard. He claims the firearm was in the cupboard because he intended to go pig shooting the following day. Mr L’Estrange told the Tribunal the Police then accompanied him to his sister’s property where he usually stored his guns. He said that although there are two houses on the property, no one lives there. He told the Tribunal that he runs about 75 cattle on that property.
17 Mr L’Estrange told the Tribunal that he defended the assault charge, but he pleaded guilty to the firearms offences. He said he did not want to plead guilty because all of his guns were registered and the two unregistered guns belonged to his former partner but he could not afford to fight the offences. Mr L’Estrange told the Tribunal he had separated from his wife and she was now living in Forbes, some 100 kilometres away from him, however he still has contact with her because he has a daughter with her.
18 Mr L’Estrange told the Tribunal he needs his firearms to run a farm and shoot stock. He claims he would have to stop being a primary producer if he did not have a licence. He told the Tribunal that no conviction was recorded regarding the offensive conduct and drink driving charges. He said the offensive conduct charge related to an incident in the hotel with a young fellow who was dealing drugs to young girls. He told his daughter that he would “bash” this fellow. The fellow caused a fight and bashed someone else and he was questioned by the police and charged with fighting. He said however that although he was convicted of offensive behaviour, he was not convicted of any offence involving violence.
19 Mr L’Estrange confirmed that he complied with all of the safety requirements in 2004 when his licence was renewed.
20 Under cross-examination Mr L’Estrange conceded that for five months of the year he worked in a gold mine. He conceded he was able to survive with this employment as well as being a farmer.
21 Mr L’Estrange conceded under cross-examination that he is able to ask his cousin to destroy any animals if necessary, but otherwise he would have to pay someone to do it. His cousin lives on an adjoining property to his sister’s property. Mr L’Estrange told the Tribunal that in 1990 he and a large number of shooters had to kill 500 animals but that usually he has to destroy animals about once every month. Mr L’Estrange told the Tribunal that it is uneconomical to pay someone to shoot animals and in any event, it is his responsibility and more expeditious if he is able to do it himself.
22 It was submitted on behalf of Mr L’Estrange that the Commissioner’s decision was wrong because the decision maker was wrong in stating at page 5 of the internal review that the common assault charge relating to Mr L’Estrange’s former wife was withdrawn. In fact it was dismissed after evidence was heard. In addition, it was submitted that the decision maker should not have speculated what had happened at court.
23 It was submitted on behalf of Mr L’Estrange that Mrs Christine L’Estrange gave evidence in court although she did not want to and Mr L’Estrange was found not guilty. There have been no other convictions of violent behaviour. There is only one conviction of offensive conduct, but that is a summary offence and not an offence involving violence. It was submitted there is no evidence of Mr L’Estrange being uncooperative with the Police. To the contrary, he told the Police where his firearms were and he assisted the Police with their enquiries. It was submitted that Mr L’Estrange was not uncooperative with the Police but the Police had cautioned him and he then exercised his legal right to refuse to be interviewed. It was submitted this should not be held against him. It was submitted that in 2004 he had complied with all of the legal requirements and he needs his gun licence for continuing income as a primary producer. Not having his gun licence has a significant impact on his income. It was submitted that there is no likelihood of any further domestic situation developing as he has separated from his wife and she is living some distance away from him.
24 It was submitted on behalf of Mr L’Estrange that the Tribunal can be confident there is no risk to the public and should restore his licence to him. Mr L’Estrange should be accepted as a witness of truth.
The Commissioner’s Case
25 It was submitted on behalf of the Commissioner that the reasoning of the internal reviewer is adopted.
26 In addition the Commissioner relied upon an affidavit of Senior Constable Derek Hopson dated 4 January 2008. Senior Constable Hopson stated that on 27 December 2006 he was called upon to investigate an allegation of a domestic assault. Senior Constable Hopson’s affidavit sets out the alleged incident and the events leading up to the discovery of the unregistered and unsecured firearms. In his affidavit Senior Constable Hopson stated “the manner in which this firearm was stored was totally inadequate and unsecure. Although it was concealed in a wardrobe and the bolt was not in the firearm it was still easily accessible to anyone in the household. As well as the three adults mentioned, two children aged 14 and 13 resided in the house at this time.” Senior Constable Hopson also stated that some days after the incident, Christine L’Estrange contacted him and asked him to withdraw the charges because she had moved and did not want the matter to continue. He told her this was not possible given the circumstances. Additionally, Sarah L’Estrange refused to provide a statement. Senior Constable Hopson stated that “throughout his dealings with Mr L’Estrange he showed no contrition for his actions”. He stated that he had very real concerns about his suitability to hold a firearms licence and to possess and use firearms.
27 Senior Constable Hopson gave oral evidence to the Tribunal. He agreed that Mr L’Estrange was cooperative regarding the firearms he held at his sister’s property but he said that on the night of the incident Mr L’Estrange did not appear to understand that having an unregistered paintball pistol and not keeping it in a safe place was a serious offence. He agreed that he did not find any ammunition close to the unregistered rifle.
28 It was submitted that Mr L’Estrange has been found guilty of breaching several sections of the firearms legislation. Holding a firearms licence is a privilege and quite clearly Mr L’Estrange did not adhere to the safety requirements. It was submitted that it is irrelevant to go behind the convictions because the fact of the conviction remains.
29 It was submitted that Mr L’Estrange’s wife made an allegation of domestic assault and their daughter, Sarah, confirmed her mother’s version of events to the Police. She later declined to give evidence in court. The evidence of Constable Hopson was unchallenged and should therefore be accepted.
30 The fact that Mr L’Estrange claims he is suffering financially because his licence has been revoked is irrelevant. Of paramount importance is public safety. The contraventions were serious and the Commissioner’s decision should be upheld.
Findings and Reasons
31 The Tribunal’s task is to determine whether the Commissioner’s decision is the correct and preferable decision having regard to all relevant material including relevant facts and applicable law: section 63 of the Administrative Decisions Tribunal Act 1997.
32 I have considered all of the material provided to the Tribunal by the parties.
33 The relevant legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences. The Tribunal has considered many applications relating to the revocation of a firearms licence where the licence holder has failed to meet the requisite storage requirements contained in Part 4 of the Act. The principles were summarised by the Deputy President in Uzelac v Commission of Police, Ministry of Police (2003) NSWADT 226 at paragraph 19:
34 Mr L’Estrange states that the unregistered firearms did not in fact belong to him but to his former wife, Christine L’Estrange. I note the evidence from Jean Markwort that she and her husband gave their daughter, Christine L’Estrange a couple of rifles, which she kept. It is not clear from the evidence whether these firearms are the same as the ones found at Mr L’Estrange’s sister’s property, however I accept that they may be. I note Mr L’Estrange’s evidence that he could not fight the firearms charges because of financial pressures and I note the evidence of P S Reardon confirming this. Mr L’Estrange also said that he was intending to go pig shooting on 28 December with the firearm, which was in the bedroom cupboard. I note the evidence of Bruce Stonestreet confirming that he and Mr L’Estrange were intending to go pig shooting the day after the domestic dispute with his former wife. I also note the evidence of all of the other persons who gave testimonials on behalf of Mr L’Estrange, in particular the evidence of Bill Cooper and Robert L’Estrange. None of this evidence was disputed or challenged and I accept that Mr L’Estrange is a well-regarded person in his community who has in the past been granted a firearms licence and who has complied with the safety and storage requirements previously.
9 …while there is no onus of proof on either party, for the Tribunal to set aside a revocation decision based on failure to store firearms safely an applicant must show that there are persuasive and relevant considerations that take their matter outside the ordinary case. ( Phegan v Commissioner of Police, New South Wales Police Service (2002) NSWADT 127; Hart v Commissioner of Police, New South Wales Police Service (2003) NSWADT 114 [51] to [54].
- the principal issue is whether there is a risk to the safety of the public if the applicant retains the licence. (Vella v Commissioner of Police, NSW Police Service (2003) NSWADT 91 at [35]. Relevant considerations include:
- the reason for failing to store the firearm safely;
- the length of time the firearm was not stored safely;
- the potential or real danger posed by failure to store the firearm safely;
- the person’s previous conduct in relation to storage of firearms and any related matter;
- the person’s understanding of the importance of safe storage and the likelihood that firearms will not be stored safely in the future; and
- the reason the person has a firearms licence, keeping in mind that firearms possession and use is a privilege that is conditional on the overriding need to ensure public safety. (Moody v Commissioner of Police, New South Wales Police (2002) NSWADT 146 at [25].
35 However, the evidence shows that at least one firearm, the .303 rifle found in the cupboard at Mr L’Estrange’s home, was not stored safely and belonged to him because he admitted that he had bought it some 6 days earlier. The bolt, although not the in the same cupboard, was easily accessible close by in a drawer in the same room. The evidence also shows that Mr L’Estrange also had a paintball pistol, which was a prohibited firearm and as such, requires registration and safe storage but it was in fact unregistered.
36 Mr L’Estrange did not, in my view, offer any reasonable explanation for these two failures. His evidence was that he was going pig shooting the day after the day the police came to his home investigating the alleged common assault. This evidence is supported by the evidence of Mr Stonestreet. I accept that this was the case, however he could have, after he purchased his rifle on 21 December 2006, stored it properly and simply gone to get his firearm the day of the pig shoot instead of keeping it in an unsecure location with the bolt close by in the same room easily accessible to anyone. Furthermore, he should have registered the paintball pistol but did not. It is not, in my view, sufficient to say that he previously complied with the requirements in March 2004 when his licence was renewed and that he is a responsible person who is not generally prone to violence. I accept all of this evidence, but in my view the real issue is the safety to the public and Mr L’Estrange’s understanding for the need for the safety and storage requirements. The risk of theft was high and the seriousness of leaving a rifle unsecured is significant.
37 It is my view that Mr L’Estrange’s actions with regard to the failure to properly store the firearm and leaving an unsecured rifle in a bedroom is an obvious danger to the public if it were to fall into the possession of someone who wishes to cause harm which it could have done given that it was unsecured. One the underlying principles of the Act is the improvement of public safety by imposing strict controls on the possession and use of firearms. The storage of firearms is not left the discretion of the licence holder. Parliament has legislated strict and detailed requirements.
38 As stated by the Tribunal in Kalinic v The Commissioner of Police, New SouthWales Police (2006) NSWADT 227:
39 I am not satisfied that Mr L’Estrange’s need for the firearm to control feral or destroy sick animals outweighs the need to adhere to the strict requirements. I am satisfied that he is able to make other arrangements for the control and destruction of feral and sick animals.
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 safety by imposing strict controls on the possession and use of firearms and by promoting safe and responsible storage and use of firearms.
40 In the matter of Wiltshire v Commissioner of Police, New South Wales Police (2005) NSWADT 75 the Tribunal stated:
41 In all of the circumstances I am not satisfied that Mr L’Estrange has a sufficient understanding and appreciation of the importance of safe storage. I am not confident that firearms will be safely stored in the future. It is my view that Mr L’Estrange would benefit from participating and completing to the satisfaction of the Commissioner, firearms training and safety courses relevant to the licence that he seeks.
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.
42 Accordingly, the correct and preferable decision is to refuse Mr L’Estrange’s firearms licence application. I affirm the Commissioner’s decision.
Orders
The decision of the Commissioner of Police under review is affirmed.
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