Lacey v Commissioner of Police, NSW Police Service
[2014] NSWCATAD 138
•15 September 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Lacey v Commissioner of Police, NSW Police Service [2014] NSWCATAD 138 Hearing dates: On the papers Decision date: 15 September 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: A Scahill, Senior Member Decision: Decision of Respondent is affirmed.
Catchwords: Breach of storage requirements; not in public interest. Legislation Cited: Civil and Administrative Tribunal Act 2013
Crimes (Sentencing Procedure) Act 1999
Firearms Act 1996
Firearms Regulation 2006
Weapons Prohibition Act 1998 (NSW)Cases Cited: Aubrey v Commissioner of Police [2005] NSWADT 266
Bevan v Commissioner of Police [2004] NSWADT 1
Commissioner of Police v Toleafoa [1999] NSWADTAP 9.
Cusumano v Commissioner of Police [2001] NSWADT 50
Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77
Lynch v Commissioner of Police (GD) [2006] NSWADTAP 43
O'Donnell v Commissioner of Police [2009] NSWADT 82
O'Sullivan v Farrer (1989) 168 CLR 210
Vella v Commissioner of Police [2003] NSWADT 91
Ward v Commissioner of Police [2000] NSWADT 28.Category: Principal judgment Parties: Michael Peter Lacey (Applicant)
Commissioner of Police, NSW Police Force (Respondent)File Number(s): 1410003
reasons for decision
Background to Application
This is an application for review of the Commissioner's delegate's decision on internal review dated 26 November 2013 affirming the revocation of Mr Lacey's firearms licence. The Respondent exercised its power under section 24(2) of the Firearms Act 1996 (NSW) (Firearms Act), which confers a discretion on the Respondent to revoke a firearms licence issued under the Firearms Act in a range of circumstances.
The relevant circumstances relating to Mr Lacey's licence were that the Commissioner's delegate's considered he had breached ammunitions storage provisions and that it was not in the public interest for him to continue to hold a licence because he had purchased and imported 2 silencers which were prohibited weapons.
Tribunal's jurisdiction
The NSW Civil and Administrative Tribunal (Tribunal) has jurisdiction to review this decision pursuant to section 75(1) (c) of the Firearms Act and section 30 of the Civil and Administrative Tribunal Action (NSW) (CAT Act).
The tribunal can take into account both the material before the original decision maker as well as any new material put before the tribunal. See Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77.
Issues for the tribunal
The issues for the tribunal to determine is should Mr Lacey's firearms licence be revoked on the basis that he has contravened provisions of the Firearms Act and Regulations and also conditions of his firearms licence in relation to storage of ammunition. In addition or in the alternative should Mr Lacey's firearms licence be revoked on the basis that it is not in the public interest for him to hold the licence as a result of the breach of ammunition storage requirements and because he has attempted to import 2 silencers, prohibited weapons, and then on sell them - without the appropriate authority.
Relevant Facts
From the written submissions before the tribunal, the tribunal has distilled the following as agreed facts.
Prior to revocation on 29 July 2013, Mr Lacey held a Category ABGH firearms licence. Mr Lacey was issued with a Category AB firearms licence on 4 August 2008 for the genuine reason of Recreational Hunting/Vermin Control, to expire on 26 September 2013. Category H (Target Shooting) was added to that licence on 28 June 2010, and Category G (Collectors) was added to the licence on 21 January 2012.
Mr Lacey has also held a number of other categories of firearms licences and permits. Relevantly, Mr Lacey held a Dealer's Employee Authority from 5 February 2011 in relation to the firearms dealership Dakota Firearms. This Employee Authority was cancelled on 29 July 2013 after the revocation of his employer's Firearms Dealer licence.
On 9 October 2012, New South Wales Police Force (NSWPF) officers attended Mr Lacey's home address with Australian Customs (Customs) officers, to execute a search warrant in relation to Mr Lacey's alleged purchase (via the internet) and importation of silencers.
Two silencers were seized from Mr Lacey's residence by the Customs officers as prohibited imports under item 4(3) of Schedule 1 of the Weapons Prohibition Act 1998 (NSW) (Weapons Prohibition Act).
Mr Lacey was not prosecuted in relation to these matters.
While executing the search warrant, the NSWPF officers also found unsecured ammunition of various calibres in several locations throughout Mr Lacey's residence. The police attending considered this was in contravention of the safe storage provisions outlined in section 40(1 )(d) and section 41(1)(c) of the Firearms Act.
NSWPF officers seized Mr Lacey's ammunition and firearms as a result of these detected storage matters, and issued Mr Lacey with a Firearms Suspension Notice.
On 28 November 2012, Mr Lacey was charged with safe storage offences under the Firearms Act -
- section 40(1): Holder of Category A or B licence not have approved storage; and
section 41(1): Category C, D or H licensee not comply with storage needs.
The offences were heard before Nowra Local Court on 17 June 2013. Mr Lacey was found guilty of the offences but was dismissed without conviction upon entering into a Good Behaviour Bond (Bond) for a period of 2 years, pursuant to section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Mr Lacey lodged severity appeals in the District Court against both verdicts.
On 29 July 2013, Mr Lacey was served with a Notice of Revocation of the Licence following the imposition of the Bond. On 30 August 2013, Mr Lacey lodged a request for internal review of the decision to revoke his Licence.
The severity appeals were heard before Nowra District Court on 21 November 2013. The District Court disposed of the appeals by dismissing the charges without proceeding to a conviction, pursuant to section 10(1) (a) of the Crimes (Sentencing Procedure) Act.
On 26 November 2013, the Internal Review concluded and confirmed the decision to revoke Mr Lacey's licence, on slightly varied grounds in light of the District Court's section 10(1) (a) dismissal.
On 2 January 2014, Mr Lacey lodged with the Tribunal an application for review of the Internal Review decision to revoke the Licence.
The Relevant Law
The principles of the Firearms Act are set out in section 3:
Section 3(1) The underlying principles of this Act are:
(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and
(b) to improve public safety:
(i) by imposing strict controls on the possession and use of firearms, and
(ii) by promoting the safe and responsible storage and use of firearms, and
(c) to facilitate a national approach to the control of firearms.
Section 11 imposes general restrictions on the issue of licences. The relevant subsections are set out below.
(1) The Commissioner may issue a licence in respect of an application, or refuse any such application.
(2.......
(2A) ......
(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) ......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
(d) .....
(3A) ........
(4).......
.
(5) A licence must not be issued to a person who:
(a) .........
(b) .....
(c) ........or
(d) is subject to a good behaviour bond, whether entered into in New South Wales or elsewhere, in relation to an offence prescribed by the regulations, or
(e) .........
The Commissioner had revoked Mr Lacey's firearms licence in July 2013 because he had entered into a good behaviour bond - thereby invoking the Commissioner's power to revoke the licence under section 24(2) (a) (revocation for any reason for which licence could be refused at first instance) and 11(5) (d) (being on a good behaviour bond).
Section 24 provides for the revocation of licences in a range of circumstances.
Section 24(2)(b)(ii) of the Firearms Act 1996 prescribes that a licence may be revoked if the licensee contravenes any provision of the Act or the Firearms Regulation 2006, whether or not the licensee has been convicted of an offence for the contravention.
Section 24(2) (b) (iii) of the Firearms Act 1996 prescribes that a licence maybe revoked if the licensee contravenes any condition of the licence.
Section 19(2)(a) of the Act prescribes that each licence is subject to the condition that the licensee must comply with the relevant safe keeping and storage requirements under this Act. In this respect Section 24(2) (b) (iii) of the Firearms Act 1996 and Section 19(2) (a) of the Act work together to provide a basis for the revocation of a firearms licence where the holder has contravened storage conditions of a licence. Sections 40 and 41 set out specific ammunition storage requirements.
Section 24(2) (d) of the Firearms Act 1996 prescribes that a licence may be revoked for any other reason prescribed by the Firearms Regulation 2006.
Clause 19 of the Firearms Regulation 2006 prescribes that the Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.
Accordingly section 24 (2) (d) of the Firearms Act and Clause 19 of the Firearms Regulation work together to provide authority for the revocation of a licence where the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.
Reasons for Internal Review Decision
This matter was considered on the papers, without an oral hearing. The Applicant's written submissions were provided in response to the reasons set out in the Internal Review decision. Accordingly, the tribunal has set out in some detail below the basis for the internal Reviewer's decision.
On Internal Review the delegate agreed with the decision to revoke Mr Lacey's licence, although on varied grounds. By this time Mr Lacey had appealed to Nowra District Court.
On Appeal at Nowra District Court, the court dismissed the appeal against Mr Lacey's sentence, but quashed the Orders imposed. The Orders were varied to a finding of Mr Lacey' s guilt of both storage matters, without conviction, pursuant to section 10(l)(a) of the Crimes (Sentencing Procedure) Act 1999, with no other penalty imposed.
Initially Mr Lacey's licence had been revoked on discretionary grounds because he had received a good behaviour bond for a prescribed offence - which he had received at first instance. On appeal the Court had determined there should be no conviction and the good behaviour bond no longer stood.
Although the grounds provided by section 24(2)(a) in conjunction with section 11(5)(d) of the Act and clause 5(2)(a) of the Regulations no longer applied to Mr Lacey's circumstances, the Internal Reviewer determined that Mr Lacey's licence should still be revoked.
Contravention of the Act and licence conditions
The internal reviewer drew the conclusion that Mr Lacey had breached safe storage requirements set out in the Firearms Act. The Internal Reviewer relied on the finding that when Mr Lacey was interviewed by police on 26 November 2012 he had admitted to failing to keep ammunition safe despite being fully aware of legislative requirements regarding the safe storage of ammunition.
The Internal Reviewer referred to the fact that Mr Lacey had told police he had been reloading ammunition the night prior to the execution of the search warrant and had left the ammunition in an unsafe manner. However, as ammunition was found in various places including in a case that had no provisions by which it could be secured. The Internal Reviewer took the view that this highlighted the probability that this was Mr Lacey's usual method of keeping ammunition.
The internal reviewer concluded that Mr Lacey had still contravened the ammunition storage requirements under sections 40 and 41 - even though he had not been convicted by the District Court.
The Internal reviewer considered the ammunition contravention should be assessed together with Mr Lacey's purchase and unauthorised importation of two prohibited weapons, and his possession of those items without a Prohibited Weapons permit in breach of section 7 of the Weapons Prohibition Act 1998.
Where a contravention has been proven without a conviction having been recorded, the Commissioner has a discretion as to whether to revoke a licence. The Internal Reviewer considered that Parliament has given a clear indication that the Commissioner is to revoke or refuse a licence, unless the Commissioner is satisfied that the contravention was merely a technical breach, the conduct posed no risk to public safety and there was no evidence that the licence holder or applicant for a licence would in future engage in conduct that posed a risk to public safety.
The Internal Reviewer considered Mr Lacey's firearms licence should be revoked due to his contraventions of the Act and of the safe storage conditions upon which his licence was issued.
Not in the public interest
The Internal Reviewer considered the fact that Mr Lacey had left ammunition unsecured posed a very real risk to public safety and that the public's right to safety must outweigh an individual's privilege to possess and use a firearm.
The Internal Reviewer referred to the fact that Mr Lacey had purchased two prohibited weapons without authorisation in breach of sections 7, 23(1) and 24(3) of the Weapons Prohibition Act 1998. As Mr Lacey had worked for a firearms dealership, it was highly probable that he would have been fully aware of the legal requirements relating to silencers, but he had not complied with them.
Further the Internal Reviewer was satisfied that Mr Lacey had intended to on-sell the silencers, despite holding no authorisation for the sale of prohibited weapons. This demonstrated Mr Lacey's lack of regard for the law generally and raised serious concerns regarding his ability and intention to obey firearms' laws. This raised concerns about Mr Lacey's future access to firearms and ammunition.
The Internal Reviewer was not satisfied that Mr Lacey understood the need for full compliance with safe storage legislation. Further he was satisfied that Mr Lacey had chosen to ignore fundamental provisions of prohibited weapons legislation. As a result there was a high probability that public safety may be placed at risk if Mr Lacey's authorisation for firearms continued. In this regard Ward v Commissioner of Police [2000] NSWADT 28 provides (at paragraph 28):
"The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk. "
The conclusion was that Mr Lacey's firearms licence should be revoked in the public interest.
Applicant's submissions
The tribunal sets out below verbatim extracts of Mr Lacey's written submissions.
Mr Lacey seeks the reinstatement of his category A, B, H and C licences.
Background.
During the search of the premises on the 9th October 2012, Police located ammunition that was secured in a container of a type approved by the NSW Police. Mr Lacey was charged by NSW Police with failing to keep ammunition in approved containers. The Court attendance Notice and Fact sheet refers to the offences with H number 49926421 and provides that there were two offences one in relation to category A and B ammunition and another in relation to C D and H ammunition.
At hearing the Local Court Magistrate dealt with both matters by way of section 10(1) (b) of the Crimes Sentencing Procedure Act 1999. The Magistrate discharged Mr Lacey on condition that he enter into a Bond for two years.
With the greatest respect to our legislators there is no differing requirement for the storage of ammunition based on the type of firearms in which that ammunition is to be used. Likewise there is no differing requirement for the storage of ammunition based on the license category that gives authority for the firearms holder to purchase and keep ammunition.
Neither the Act nor the Regulations make any distinction between the storage requirements and it must be accepted that any ammunition for any firearm irrespective of the license category which the license holder can and will be stored together, that is ammunition for each category of license may share the same storage receptacle. The duplicity of the storage mention in both those sections is an anomaly in the ACT that should (but probably won't) be addressed. Further to that when one views the NSW Police Firearms Website to get information on such matters there is a brochure that is available on ammunition storage. Part of the brochure are photographic examples of approved containers. Looking at the examples one soon notices that the box on the left of the page is without any locking device at all. We enclose a copy of that brochure for your reference. Accordingly if one were to rely upon the example provided by the Firearms Registry as an approved box and use that box in the belief that the container is approved that person would be committing an offence.
District Court Appeal.
Mr Lacey's District Court appeal on 21st November 2013 was successful and His Honour dealt with both matters by way of section 10(l) (a) of the CRIMES (SENTENCING PROCEDURE) ACT 1999. That section provides:
CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 10 Dismissal of charges and conditional discharge of offender
10 Dismissal of charges and conditional discharge of offender
(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders:
(a) an order directing that the relevant charge be dismissed;
The nett (sic) effect of the Appeal is that the bond was removed and the matter was effectively dismissed.
Australian Government - Australian Customs and Border Protection Service.
The internal review relied, in part, at page 4/5 (on the fact) that Mr Lacey held no authority to on-sell the silencers. It is noted in the bundle of documents at tab number 1 advises that Mr Lacey was issued with and held Dealer's Employee Authorisation No 410405713. That Authority was issued on the 6th February 2011 and Cancelled on the 29th July 2013.
Mr Lacey in his capacity as an employee of the Firearms Dealer has authority as provided by the NSW Police Firearms Registration.
NSW Police Firearms Registry Firearms Dealer Information Booklet provides at clause 1.3 Authority Conferred by a Dealer License "a summary of role and responsibilities of a firearms dealer. That section is followed by section 1.4 "Authorised Employees of a Firearms Dealer. " provides that:
"The granting of an employee authority subjects the holder the same authority and conditions as what the firearm dealer is subject to, and allows them to carry out the day-to-day activities of the business. Similarly, however, the duties and responsibilities applicable to a firearm dealer extend to the employees and any action undertaken by the employee is attributable to the firearm dealer. ".
Enclosed is an extract from the Dealers Booklet encompassing both Firearms Dealers and Authorised employees.
The authority conferred on Mr Lacey (by the issue of a Dealers Employ) Authority was not less than that of the Firearms Dealer under which the authority was issued accordingly in the course of his employ he was authorised to on sell the items.
We also note that Customs and Border Protection services elected not to pursue the matter of the importation and we enclose herewith correspondence from Border Protection and Customs not simply electing not to pursue the matter but also providing an opportunity for Mr Lacey to claim back the items.
Applicant's Conclusions.
The NSW Firearms Regulations 2006 Regulation 5 provides offences that disqualify applicants;
With respect: Mr Lacey's matters do not fall within any of the categories in that regulation. He has not been convicted of an offence for which section 11 (5) (b) of the Act nor has he been convicted of an offence under section 29(3) (b).
He is not the subject top a good behaviour bond. He has a blemish free record.
If Mr Lacey were to be making an initial application for a licence then there would be no matter on any application that would have the effect of preventing Mr Lacey from being issued with a license.
The Respondent's Submissions
The Respondent referred to and relied on the discretionary power to revoke a firearms licence set out in 24(2) (b) and 24(2) (d) of the Firearms Act.
Revocation for contravention of a provision of the Firearms Act - section 24(2) (b)
Section 24(2)(b)(ii) of the Firearms Act prescribes that a licence may be revoked if the licensee contravenes any provision of the Firearms Act or the Firearms Regulation 2006 (NSW) (Firearms Regulation), whether or not the licensee has been convicted of an offence for the contravention.
Mr Lacey breached sections 40(1) (d) and 41(1) (c) of the Firearms Act by failing to store ammunition in a locked container of a type approved by the Respondent and separate from any firearm. In Bevan v Commissioner of Police [2004] NSWADT 1 the ADT stated that in the case of a contravention of the Firearms Act or condition of a licence, the Respondent is to revoke that licence unless he is satisfied that the contravention was merely a technical breach, the conduct posed no risk to public safety and there was no evidence that the licence holder would engage in future conduct which posed a risk to public safety.
The Respondent submits that Mr Lacey's conduct, in failing to store ammunition in a secure manner (being much more than a technical breach), poses a real risk to public safety. The safe storage of ammunition is one of the key responsibilities owed by individuals who are licensed to possess firearms. Mr Lacey's failure to store ammunition in a safe manner indicates a possibility that Mr Lacey may engage in future conduct which could pose a further risk to public safety.
Under section 24(2) (b) (ii) of the Firearms Act, the contravention of the safe storage provisions alone is sufficient to warrant revocation of the Licence: the fact that a conviction has not been recorded against Mr Lacey is irrelevant. Indeed, both the Local Court and District Court found that the elements of the contravention were proven.
Revocation for any reason prescribed by the regulation - section 24(2) (d)
Section 24(2) (d) of the Firearms Act prescribes that a licence may be revoked for any other reason prescribed by the Firearms Regulation.
Clause 19 of the Firearms Regulation prescribes that the Respondent may revoke a licence if he is satisfied that it is not in the public interest for the licensee to continue to hold the licence.
The High Court in O'Sullivan v Farrer (1989) 168 CLR 210 stated that the "public interest" imports a discretionary value judgment to be made by reference to undefined factual matters, confined insofar as the subject matter and the scope and purpose of the statutory enactments may enable.
The concept of "public interest" was discussed by the ADT in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 as follows:
The "public interest" is an inherently broad concept giving an appellant [the Respondent] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with in the same section, it is reasonable to infer that the parliament intended that the public interest discretion operated in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.
The circumstances in Toleafoa related to the revocation of a security licence under the Security Industry Act 1997 (NSW). In Ward v Commissioner of Police [2000] NSWADT 28, the ADT confirmed that these comments apply equally to the Firearms Act
The Respondent submits that, in the context of possession and use of firearms, the public interest is inextricably linked to public safety.
In Cusumano v Commissioner of Police [2001] NSWADT 50, the ADT stated:
There is no guidance in the legislation in relation to how these directions [to revoke firearms licences] should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act.
In Lynch v Commissioner of Police (GD) [2006] NSWADTAP, the ADT said relevant factors to be considered by the Respondent in determining whether to exercise his discretion include matters of general public policy, which were in turn said to be informed by the principles and objectives of the Firearms Act, namely, to confirm firearm possession and use as a privilege conditional upon the overriding need to ensure public safety.
In Ward, the ADT stated:
Where there has been, or is, a possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm.
The principal issue in determining public safety is therefore whether or not there is a risk to the safety of the public if Mr Lacey retains the relevant licence. See Vella v Commissioner of Police [2003] NSWADT 91.
In considering risk to public safety, the ADT recognised that it must be satisfied that a person would not pose a risk to public safety if they had access to firearms. In Ward, the ADT stated:
"The [ADT] could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the [Firearms Act] the ADT must be satisfied that there is virtually no risk."
Licence holders must not only understand the laws and regulations by which they are bound, but must also comply. See O'Donnell v Commissioner of Police [2009] NSWADT 82.
The Respondent submits that Mr Lacey's conduct, in failing to store ammunition in accordance with the requirements of the Firearms Act, constitutes a serious breach of the safe storage provisions and, in turn, undermines the broader public safety objectives of the Firearms Act
Importation of silencers (prohibited weapons)
In addition, Mr Lacey's unauthorised purchase and importation of silencers is indirectly relevant to the revocation of the Licence.
A silencer is classified as a prohibited weapon under clause 4(3) of Schedule 1 of the Weapons Prohibition Act. To lawfully possess or use a silencer, a person must hold a prohibited weapon permit authorising possession or use. In order to obtain such a permit, a person must have a genuine reason for possession and use of a silencer. The reasons accepted as genuine for the purpose of permit applications are very limited. Mr Lacey does not, and has never, held a prohibited weapon permit.
The Respondent submits that Mr Lacey's actions of:
(a) purchasing and possessing the silencers without holding a prohibited weapon permit; and
(b) (b) failing to store live unsecured ammunition in a safe and secure way
mean that there would be a real risk to public safety should Mr Lacey be permitted to hold a firearms licence.
In Aubrey v Commissioner of Police [2005] NSWADT 266, the ADT stated that any past or present conduct which may be relevant must also be reviewed when deciding whether a person deserves the privilege of holding a firearms licence. The ADT also expressed the opinion that any propensity towards offending against the law must be regarded as of crucial importance. Therefore, Mr Lacey's ammunition storage contravention should not be assessed in isolation from his purchase and unauthorised importation of two prohibited weapons.
Licence has expired
The Respondent submits that the Licence which is the subject of this application expired on 26 September 2013. An expired firearms licence cannot be reinstated. There is no utility in the Tribunal making any order in relation to the Licence.
Respondent's Conclusion
The Respondent is strongly of the view that the principles and objects of the Firearms Act are best served by the revocation of the Licence.
The Respondent submits that he did not take account of irrelevant considerations in revoking the Licence, such that the decision should be overturned. Similarly, the Respondent did not fail to take any relevant considerations into account. That is, he did not fail to take into account any consideration which he was bound to take into account.
The Respondent submits that his decision to revoke the Licence was reasonable and logical. Even if the Tribunal does not accept that that is the case, the Respondent submits that the decision to revoke the Licence was not so unreasonable in the circumstances that it could be seen as not being an exercise of his power and invalid.
The Respondent submits that the exercise of his discretion to revoke the Licence was the correct and preferable decision, was within power and should be affirmed by the Tribunal by dismissing Mr Lacey's application.
Tribunal's Findings of Fact
The facts before the tribunal in relation to safe and compliant storage of ammunition are as follows. Mr Lacey has worked for a firearms dealer and has held the appropriate employee authority to do so. He has also held firearms licences in his own right. In executing a warrant in relation to another matter on 9 October 2012 NSWPF officers found ammunition on a work bench which was not in a secure storage receptacle. Officers also found ammunition in receptacles which do not conform to regulated requirements.
In the Applicant's submissions Mr Lacey has raised an issue of an anomaly in the Firearms Act in the "duplicity" in the storage requirements of ammunition for different categories of firearms. He has also raised the issue of the kinds of receptacle pictured in a brochure concerning approved safe storage of ammunition - one of which is without any locking device at all. This could lead to the mistaken belief that the storage box is approved and make the licensee guilty of an offence.
Further Mr Lacey contends that the net effect of his Appeal to the District Court was that the bond was removed and the matter was effectively dismissed.
The tribunal has taken these submissions into account as to whether Mr Lacey has stored ammunition in contravention of the Firearms Act and Regulations.
The tribunal is satisfied that the outcome of the proceedings in relation to the alleged storage offences was at first instance before Nowra Local Court that Mr Lacey was found guilty of the offences - but was dismissed without conviction with the imposition of a good behaviour bond.
The tribunal is satisfied that in dealing with Mr Lacey's Appeal, Nowra District Court under the provisions of section 10 of the Crimes (Sentencing Procedure) Act 1999 found Mr Lacey guilty of the 2 offences - but did not proceed to a conviction and ordered the charges be dismissed.
In these circumstances of the findings of guilt the tribunal finds that Mr Lacey did take the actions of failing to store ammunition safely as set out in sections 40 and 41 of the Firearms Act.
Purchase of prohibited weapons without authorisation
In his submissions on this issue Mr Lacey contends that he held authority to on sell the 2 silencers on the basis of his Dealer's Employee Authorisation which extended to him as an employee "the same authority and conditions as what the firearms dealer is subject to and allows them to carry out the day to day activities of the business. Similarly, however, the duties and responsibilities applicable to a firearm dealer extend to the employees and any action undertaken by the employee is attributable to the firearm dealer. "
Mr Lacey also provided a copy of Australian Customs and Border Protection Service's letter to him of 4 December 2012 advising him that they would not be taking further action against him on this occasion.
The tribunal notes however that the letter states:
"You did not obtain permission from the Attorney General's Department to import the goods into Australia prior to their importation; You did not declare the goods to Customs".
The letter also notes
"This importation will be recorded and prosecution action is possible in the future if other prohibited imports are intercepted. That prosecution could include the importations described above."
Mr Lacey does not deny purchasing and importing the 2 silencers without the requisite authority. Accordingly the tribunal is satisfied that Mr Lacey did take the actions set out in the letter of 4 December 2012 of purchasing and importing without authority.
The tribunal is not satisfied on the evidence before it that Mr Lacey intended to on sell the silencers.
Tribunal's conclusions
The tribunal has found that Mr Lacey failed to store ammunition safely as required by his licence conditions and the Firearms Act and Regulations. The tribunal accepts that the behaviour was more than just a technical offence - despite Mr Lacey's reference to the unsecured receptacle appearing in the firearms storage brochure. Even if the tribunal were to accept that the storage receptacles did not strictly meet specifications - it is clear that ammunition which was not stored in any way was also found by the attending officers of NSWPF.
The tribunal accepts and adopts the approach in Bevan's case that Mr Lacey's licence should be revoked in these circumstances as the breach was more than just technical. The tribunal finds that the Commissioner's decision to revoke Mr Lacey's licence as he has contravened ammunition storage provisions and conditions of his licence to store ammunition safely in terms of section 24 (2) (b) (ii) and (iii) was the correct and preferable decision.
Having drawn this conclusion it is unnecessary for the tribunal to determine whether Mr Lacey's firearms licence should have been revoked pursuant to sections 24(2) (a) and 11(7) as not in the public interest.
Decision
The Commissioner's decision to revoke Mr Lacey's firearms licence is affirmed.
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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
Decision last updated: 15 September 2014
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