Lando v Commissioner of Police

[2021] NSWCATAD 8

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Lando v Commissioner of Police [2021] NSWCATAD 8

Hearing dates:

14 December 2020

Date of orders:

18 January 2021

Decision date:

18 January 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J McAteer, Senior Member

Decision:

The decision of the respondent to revoke the Applicant’s Category AB Firearms Licence is affirmed.

Catchwords:

ADMINISTRATIVE LAW - Firearms – Whether it is in the Public Interest to hold the licence – revocation of licence – suspension of licence – reviewable decision– objects of legislation – public interest use contrary to Firearms Act – meaning of self protection

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Firearms Regulation 2017

Mental Health Act 2007

Cases Cited:

Azzopardi v Commissioner of Police, NSW Police Force [2013] NSWADT 205

Comalco Aluminium (Bell Bay) Ltd v O’Connor and Others (1995) 131 ALR 657

Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16

Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409

Petas v Commissioner of Police [2013] NSWADT 137

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Uzelac v Commissioner of Police, Ministry of Police [2003] NSWADT 226

Webb v Commissioner of Police, New South Wales Police [2004] NSWADT 110

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Gilbert Guy Lando (Applicant)
Commissioner of Police (Respondent)

Representation:

Solicitors:
S Lando (Agent) (Applicant)
Maddocks Lawyers (Respondent)

File Number(s):

2020/00226971

Publication restriction:

Nil

Reasons for decision

What these proceedings are about

1. These proceedings concern the Commissioner of Police’s decision to revoke the applicant’s Category AB Firearms licence on 1 November 2019.

2. The revocation was on the basis that the applicant had breached the firearms Legislation when Police discovered two unsecured and loaded firearms in his residence on 20 December 2018, and evidence that the applicant advised Police that the firearms were unsecured so that he could quickly protect himself from a person who had threatened to come and harm him.

3. The Commissioner’s delegate determined that the presence of unsecured firearms and a stated desire to use the firearms for self protection were matters that raised concerns about public safety.

4. On 1 November 2019 the Commissioner’s delegate issued a notice of Revocation under s 24 of the Firearms Act 1996 (the Firearms Act) stating that the decision was based on concerns that the applicant would not always exercise continuous and responsible control over firearms. This raised issues of concern about public safety and as a result the Commissioner’s delegate formed the view that it was not in the public interest for the applicant to hold a firearms licence. As a result the licence was revoked as at 1 November 2019. These proceedings concern an administrative review of the revocation decision.

Background

5. The applicant (Mr Gilbert Lando) has held a firearms licence of some type for over 30 years with a New South Wales licence being first issued in 1988. At some time prior to holding a New South Wales licence and living in Australia, the applicant undertook service in the French armed forces and saw active duty in the Algerian War from the mid 1950’s to the early 1960’s. This military service was referred to briefly in the applicant’s history of firearms use and safe handling. The applicant became an Australian citizen in 1983 and has lived in Australia since that time.

6. The applicant who lives on the Central Coast of New South Wales has a stepson by marriage. The stepson lives in the New England area of New South Wales and is reported to be mentally ill. The incident which culminated in the revocation of the firearms licence occurred over two days, 19 and 20 December 2018.

7. The applicant and his wife (Sandra Lando) had telephone contact with the stepson. Various serious threats (including threats to kill) were allegedly made by the stepson directed at the safety of the applicant and his wife. The applicant is in his 80’s and his wife is in her 70’s. At around 8:00pm on 19 December 2018 they contacted ‘000’ to report the incident and advise that threats to kill them had been made. The stepson has allegedly threatened to drive from his residence and harm the parents. Both the applicant and his wife reported the matter but did not provide their details.

8. Police attended the residence of the applicant at around 3:00am on 20 December 2018 to conduct a welfare check in response to the 000 call. It appears that the applicant and his wife took the Police vehicle headlights approaching their semi rural property to be the son attending to carry out his threat. The applicant and his wife had prepared a contingency plan where two firearms were placed at different locations in the home, one by the front window near where the applicant was earlier in the evening asleep on a chair, and one near the rear of the premises that they could take to an outbuilding and discharge the firearm so as to alert neighbours to their predicament.

9. The attending Police observed the front firearm through an open window and decided because of concerns for the occupants’ wellbeing that they needed to rouse the occupants and banged on the door. Attending Police then became aware that the applicant and his wife were calling Police and neighbours raising the alarm (due to their understanding that the Police presence was the son). Attending Police were alerted to this via the radio network.

10. The Police eventually located the applicant and his wife. The Police advised that would be seeking an Apprehended Domestic Violence Order (AVDO) on their behalf.

11. The attending Police inspected the firearms safe and identified that two firearms were missing. When asked about the second firearm the applicant told Police that it was out the back. Later that morning Police seized all firearms licenced to the applicant and issued a Notice of Suspension under the Firearms Act. The effect of the Notice of Suspension being that the applicant was (for an interim period) unable to access or use firearms consistent with his licence. I note that a Notice of Suspension is not an administratively reviewable decision.

12. On 1 November 2019 the Notice of Revocation was issued by the Commissioner’s delegate. On 10 November 2019 the applicant sought an Internal Review of the revocation decision. On 15 July 2020 after eight and a half months the Commissioner’s delegate made a decision on the Internal Review and affirmed the original decision of 1 November 2019.

13. The applicant applied to the Tribunal for administrative review on 4 August 2020 which is within the 28 day time period provided by the legislation.

Jurisdiction

14. The Notice of Revocation relies on section 24 (2) of the Firearms Act:

24 Revocation of licence(cf APMC 6, 1989 Act s 36, 1990 Reg cl 27)

1. A licence that authorises a person to possess or use a firearm is automatically revoked if the licensee becomes subject to a firearms prohibition order or an apprehended violence order.

(1A) The Commissioner must revoke a licence that is held for the purpose of employment as an armed security guard (within the meaning of the Security Industry Act 1997) if—

(a)   the licensee has failed to undertake any firearm safety training required under this Act or the regulations, or

(b) in the case of a licensee who holds a class 1F licence or a visitor permit authorising the licensee to carry out security activities of a kind authorised by a 1F licence under the Security Industry Act 1997—the 1F licence or visitor permit is revoked under that Act or the licensee contravenes any condition of the firearms licence under this Act.

1. A licence may be revoked—

   (a)   for any reason for which the licensee would be required to be refused a licence of the same kind, or

   (b)   if the licensee—

   (i)   supplied information which was (to the licensee’s knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or

   (ii)   contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or

   (iii)   contravenes any condition of the licence, or

   (c)   if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or

   (c1)   if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or

   (d)   for any other reason prescribed by the regulations.

   15. Clause 20 of the Firearms Regulation 2017 provides:

Firearms Regulation 2017

20 Revocation of licence-not in the public interest

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.

16. Section 75 of the Firearms Act provides that a person aggrieved by any of the seven listed actions of the Commissioner can apply to the Tribunal for administrative review of that decision.

17. The section provides:

75 Administrative reviews by Civil and Administrative Tribunal of certain decisions

1. A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions—

   (a)   the refusal of or failure by the Commissioner to issue a licence or permit (other than a permit in respect of a prohibited firearm) to the person,

   (b)   a condition imposed by the Commissioner on a licence or permit issued to the person,

   (c)   the revocation of a licence or permit issued to the person (other than a revocation on the basis that the holder of the licence or permit is subject to a firearms prohibition order or an apprehended violence order),

   (d)   the refusal of or failure by the Commissioner to register a firearm,

   (e)   the cancellation of the registration of a firearm by the Commissioner,

   (f)   a firearms prohibition order made against the person,

   (g)   a decision made under the regulations concerning the person that belongs to a class of decisions prescribed by the regulations for the purposes of this paragraph.

(Emphasis added)

The decision under review

18. In the Internal Review the senior delegate (the reviewer) made a number of findings of fact including that:

• On 19 December 2018 the applicant’s wife telephoned ‘000’ to seek advice in relation to alleged threats made by the stepson that he was coming to kill the applicant, but she terminated the call without providing any identifying details.

• Police traced the call and attended early in the morning to conduct a welfare check. Police knocked and called out but did not receive a response. Police saw a rifle sitting on an armchair through the front window.

• Police were alerted by colleagues that the applicant had telephoned police with a report that the stepson had arrived at the property and the applicant and his wife had armed themselves with a loaded firearm and fled out the back and were hiding in a ‘barn’.

19. The reviewer accepted that the applicant held a genuine fear for his own safety and that of his wife. The reviewer also noted the applicant’s actions and stated intentions being:

‘.. upon hearing unannounced persons arrive at your property, you attended your gun safe, loaded two firearms, (one of which you left on a couch) before fleeing to your back yard to hide. Irrespective of your intentions in respect of using the firearms, you assert that you were genuinely fearful for your safety, and instead of calling police in the first instance, took matters into your own hands and armed yourself accordingly.

20. The reviewer expressed concern that the applicant and his then Solicitor in written submissions accompanying the Internal Review request, appeared to minimise the seriousness of the incident, notwithstanding that no formal action was taken by Police in respect of breaches of the Firearms Legislation and Regulations over the incident.

21. In respect of the ‘not in the public interest’ ground, the reviewer relied on the finding that the actions were potentially dangerous in that the applicant had left a loaded firearm in the house unattended. The reviewer found that irrespective of the applicant’s intentions, he loaded a firearm as a direct result of a situation where he believed that he was in danger. Section 12 (2) of the Firearms Act provides that a firearms user does not have a genuine reason for possessing firearms if they intend to use them or posses the firearm for personal protection of themselves, or any other person, or protection of their property.

22. As a result of these matters the reviewer weighed up the views of the attending Police officers, that they held concerns about the applicant remaining authorised to use firearms in the circumstances of the incident of 19 and 20 December 2018. The reviewer noted that the licencing regime is not focussed on punishment but on protecting the public. The reviewer found that notwithstanding the applicant’s previous unblemished firearms record, and lack of criminal record generally, greater weight attached to the concerns about public safety based on the largely uncontested events of 19 and 20 December 2018.

23. The reviewer balanced the unchallenged ‘good character’ of the applicant with the behaviour relating to the incident and subsequent opinions about those matters as being contrary to the interests of public safety. Crucially the reviewer observed the following:

Additionally, the current situation with your stepson is unknown, and given your demonstrated reluctance to request police assistance in a situation where you felt your safety was in danger, I cannot be satisfied that your possession of firearms is without risk.

In this regard, police have advised that they have concerns if you were to remain authorised to possess and use firearms. Their opinion is assigned considerable weight on the basis that they have been in personal contact with you and because of their experience in matters involving domestic disputes.

Administrative Review

24. The Tribunal’s function on review under section 63 of the Administrative Decisions Review Act 1997 (the ADR Act) is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.

25. The matter was heard on 14 December 2020. Due to Covid -19 requirements both parties appeared by telephone. Leave was given to the applicant pursuant to s 45 (1) (b) of the Civil and Administrative Tribunal Act 2013 to have his wife (Sandra Lando) appear as his agent at the hearing. The agent told the hearing that the applicant was hard of hearing and spoke with a strong accent which others often had difficulty understanding. The respondent consented to the request that the applicant appear through his agent who had been previously given leave to appear for directions hearings.

What issues do these proceedings raise for determination?

26. On my assessment the issues are:

• Does the apparent contravention of the provisions of s 12 (2) of the Firearms Act warrant a revocation of the licence?

• Does the apparent breach of the safe storage provisions warrant a revocation of the licence?

• Is it in the public interest for the applicant to hold a licence?

Evidence

27. The applicant filed three items which were tendered predominantly without objection.

• Exhibit ‘A-1’ consisted of the application for administrative review grounds and correspondence dated 30 July 2020 and 27 July 2020 by the applicant, and his former Solicitor’s submissions to the Commissioner of 13 November 2019, and his own submission of 10 November 2019 to the Commissioner.

• Exhibit ‘A-2’ consisted of a submission dated 9 November 2020 including a submission in reply / in response to the Commissioner’s evidence (the statement of Senior Constable M Griffey of 19 October 2020).

• Exhibit ‘A-3’ consisted of four character references and a letter from the applicant’s local GP. The Commissioner submitted that these were all of limited weight and that one letter (from his former solicitors) should not be read. They also submitted that the medical letter should not be considered as evidence of character. The references were received on that basis.

28. The Commissioner’s evidence consisted of:

• Exhibit ‘R-1’ the s 58 the ‘ADR Act’ documents comprising 16 documents (56 pages) which the Commissioner submitted were relevant to the decision under review.

• Exhibit ‘R-2’ the statement of Senior Constable Michael Griffey’ dated 19 October 2020.

29. The Commissioner also relied upon written submissions dated 21 October 2020. No party or witness gave evidence at the hearing.

Applicant’s evidence and submissions

30. The applicant’s agent advised the Tribunal that the applicant had removed the gun from the safe in order to fire it into the air should they need to alert the neighbours to the fact that they needed assistance during any altercation with the stepson. The agent emphasised that this action was only to alert the neighbours.

31. However when the Tribunal raised that they could have telephoned the neighbours the agent advised that she and the applicant were private people and did not wish to burden the neighbours or disclose all of their private family issues / problems.

32. The personal situation of the applicant (and the agent) was put in oral submissions at hearing, emphasising that this incident was not just about the firearms licence, and that they had lost a son, a grandson and a daughter in law over the repercussion of this incident. The Tribunal inferred from comments made by the agent that the stepson was detained for a period under the Mental Health Act 2007 in some capacity following the incident, and since that time all contact between them had ceased. The Tribunal noted the evidence of enforceable orders in place concerning the stepson.

33. The agent raised with the Tribunal the long unblemished history of the applicant and made a number of propositions in the nature of questions to the Tribunal concerning how they might have done things differently during the incident and stating why the course of action was not ideal but understandable in the circumstances. The agent on behalf of the applicant made much of the fact that they had not asked Police to attend and deliberately did not wish to divulge their details in order to achieve this outcome. By way of submission it was put that the headlights of a large ute / 4WD vehicle in the early hours of the morning coming down their laneway unannounced understandably prompted the reaction that occurred. The applicant and his agent appeared to genuinely believe that the stepson had made good on his threats and driven the hundreds of kilometres south to their residence.

34. In the applicant’s signed statement of 30 July 2020 (‘A-1’) he refers to the suspension and subsequent revocation being a punishment. Emphasis was placed on the fact that the applicant and his wife would not divulge the details of the stepson to the attending Police. The choice of hearing venue for the ADVO matter was also cited as a punishment, as having the matter heard in his home town would mean that the stepson’s business reputation would be damaged and the applicant and agent would need to travel 6 hours to Court. The applicant said in his statement that the officer in charge said not having the matter heard at Wyong was the Police’s choice and that they got to decide.

35. In his signed statement of 27 July 2020 the applicant expressed extreme regret at what had transpired. The applicant stated that he had taken time to reflect on his actions and had taken legal steps to protect himself form his stepson. The applicant stated that the closest neighbours are all on-board and should there be a reoccurrence then he will call ‘000’.

30. The applicant said in his statement that the events as documented in the Commissioner’s statement of reasons were accurate. He said that the actions were a ‘one –off total error of judgement, and taken in perspective, and in light of my whole life of exemplary conduct, could be reconsidered’.

31. The applicant stated in his statement that:

I took 2 guns from my (normally locked) safe. One was left in the living room and one I had with us in the shed. As stated, my intention was if he broke into our house to harm us, I could fire one of the guns (depending where he broke in) into the air to alert the neighbours and hopefully avert being killed ourselves. The 22 rifle in the living room had the magazine in the gun, however the bolt action was pulled back and not in position (not armed) to shoot. Even with everything said and done I could not shoot my stepson and wife’s son. Again, my behaviour was irresponsible behaviour by myself, and a lesson very well learnt.

38. The other statements of the applicant traverse similar ground. They all express regret at the actions and the incident in general, but reiterate the intention to use the firearm only if they were detected by the stepson, and to use it by firing the firearm into the air (so as to alert neighbours). These comments remained consistent throughout the evidence of the applicant.

39. The applicant’s statement at Exhibit ‘A-2’ of 9 November 2020 covers the timing of the Police actions in suspending his licence. The applicant states that:

As stated in my documentation, they (the police) did not feel I was a threat to the Public on the night in question. They left all my firearms at my premises in my care in the safe overnight. No charges were laid. They say that ‘the licencing regime is not about punishment. It is about identifying the risks to the public.’ At no point was the public ever threatened by me, or at any risk by me. SC Griffey in item 60 of the submission states that ‘my behaviour had Police very concerned that I could have shot the Police thinking they were my son.’

40. The applicant refers in this statement to a perception that he was the victim in the matter but has (as a result of Police action) been treated as a perpetrator. The applicant goes on to assert that the Police position that he was using the firearms for self protection is wrong. The applicant states that the purpose of using the firearms (by potentially shooting them into the air) was not for self protection but for the purpose of ‘alerting neighbours’. In the applicant’s view such action does not constitute ‘self protection’.

41. The applicant’s character evidence (exhibit ‘A-3’) consists of character and personal references and other documents attesting to the applicant's positive personal attributes and character. The references of Miller, Rowlandson, Gillings, and James and James, does not disclose any knowledge of the matter before the Tribunal. The reference of the applicant’s spouse does not refer to the incident but gives detailed background to the applicant’s character, struggles and achievements. It is accepted that as a witness to the matter the wife has knowledge of the events central to these proceedings

Evidence of Senior Constable Michael Griffey

42. This officer was not required for cross-examination at hearing. He was one of the two officers who attended the applicant’s property in the early hours of 20 December 2018.

43. In his signed statement of 19 October 2020 the witness said that he attended the applicant’s property with a colleague Senior Constable Greentree to conduct a welfare check in response to the ‘000’ call. The witness states that they approached the house on foot and called out to the occupants but received no response. The witness saw the rifle (through a window) on the armchair loaded with its magazine. The witness said that whilst the rifle had the magazine in the magazine well the side bolt was pulled to the rear and it did not appear that there was a round in the barrel.

44. The witness said that whilst the applicant provided information about the situation he refused to provide their details or details of the stepson. At [14] – [18] of his statement the witnesses records:

1. I subsequently contacted TL 14 again to see if they were still going to attend the property and advised them that a Firearms confiscation book was required to seize Mr Lando's firearms given that the incident was domestic violence related. Mr Lando had not stored the firearms properly, they were loaded, and he was attempting to use them for self protection. I was advised by TL 14 to leave the firearms with Mr Lando as he was at the time considered to be a victim.

2. I subsequently asked Mr Lando to take me to the room in his house where the loaded firearm was and took it and rendered it safe and attended Mr Lando’s gun safe to check the remaining firearms. Upon opening the safe, I only saw one more firearm despite the Integrated Licensing System check stating that there should be three firearms stored at the property.

3. I then had a conversation with Mr Lando using words to the following effect:

Senior Constable Griffey: There is a firearm missing – where is it?

Gilbert Lando: It is out the back where I was hiding with my wife.

1. Mr Lando took me to where he had been hiding in a shed on the property, and I found a side by side double barrel shotgun with one shell in the firearm ready to be fired.

2. Mr Lando said ‘the guns were out of the safe and loaded as I was scared that my son was going to come and kill us and we needed to protect ourselves.’ Mr Lando did not state how he planned to protect himself.

   45. Then rest of the statement dealt with the issue of whether the applicant and his wife were told that they did not need to provide personal details of themselves or the stepson. This issue remained in conflict between the parties but does not appear to be a matter relevant to the basis of the decision under review.

Applicant’s submissions

46. The applicant submitted that the action they took was necessary in the circumstances and did not constitute the use of a firearm to protect themselves or their property, but characterised their intentions indicating that it was an early warning or alarm to alert the neighbours that there was a serious matter taking place. Their submission being that such use is not use to protect.

47. Much of the applicant’s submissions also focused on the unjust nature of the action taken by the Commissioner against him and that the action was punitive. In closing submissions the agent suggested that the types of matters the Tribunal was asking of her indicated that the Tribunal had already made up its mind on the matter. The main questions related to asking the agent to explain the distinction between the use of a firearm and what the applicant’s own evidence about his actions and intentions with the two firearms amounted to. The Tribunal explained that in order to be fair it was trying to understand the distinction between the stated use, and what the Commissioner was saying.

Respondent’s Submissions

48. In oral submissions the respondent referred to the common ground about the facts and that the main issues in dispute related to the Commissioner’s exercise of the discretion to revoke the licence.

49. The respondent submitted that three issues arise. The first is what the applicant did that was contrary to the firearms provisions, the second the risk to public safety and whether there is a perceived danger to the public, and thirdly whether or not that risk continues.

50. In respect of the conduct of the applicant, the respondent submitted that their own evidence on the facts is uncontroversial. There is no dispute that the firearms were removed from the safe because of the threat of the stepson arriving at the property. On the evidence accepted by the applicant at hearing it was conceded that both firearms were loaded with ammunition (even though on at least one a further action with the bolt was required prior to firing the firearm).

51. The respondent submitted that the totality of the applicant’s evidence and submissions shows that they make a subtle distinction of what constitutes the use of a firearm for self protection. The respondent’s position is that the applicant has acted contrary to s 12 (2) of the Firearms Act in that they have intended to use the firearms for self protection and therefore under that section they do not have a genuine reason for having a licence.

52. The respondent submitted that the evidence established that the applicant had breached s 7A of the Firearms Act in that he had used the firearms for a purpose other than the purpose which was the genuine reason for the licence (Recreational Hunting / Vermin control).

53. There were also breaches of the safe storage provisions in that the firearm on the chair was unattended and loaded. The respondent submitted that the contravention of the safe keeping requirements is fundamental, as those requirements go to the crux of the principles and objectives of the Act.

54. Reference was made to the evidence of Senior Constable Griffey, (Exhibit ‘R-2’) concerning what was said to Police by the applicant. Reference was also made to the applicant’s email of 27 July 2020 to the Commissioner (Exhibit ‘A-1’) whereby it is stated that:

‘So with the utmost terror that his threats were delivered to us, we did the only thing that we felt we could do at the time to attempt to protect ourselves from being killed’. I took 2 guns from my (normally locked) safe. One was left in the living room and one I had with us in the shed. As stated, my intention was if he broke into our house to harm us, I could fire one of the guns (depending where he broke in) into the air to alert neighbours and hopefully avert being killed ourselves.

55. The respondent submitted that this was evidence of a stated intention to use the firearms for self protection.

56. The respondent submitted that the applicant’s actions were a danger to the public. The respondent submitted that the reference to the public extends to the applicant and his wife. The respondent also submitted that the very fact of firing a firearm into the air (either inside or outside of the shed) is a risk to the public that is both real and appreciable. The fact that the applicant and his wife believed that the attending Police were their stepson illustrates the level of risk, and how their behaviour and subsequent actions arose from that belief.

57. The respondent submitted that the risk is ongoing notwithstanding the positive character references. Those references do not identify the matter before the Tribunal so they can only be considered absent this issue. The applicant’s own evidence demonstrates the risk and the admission at the hearing that the action taken was the only course of action open to them. The respondent submitted that the stepson continues to have ‘problems’ (mental health related) and that the ADVO is due to expire in January 2021 and this is further reinforced by the significant steps that the applicant has since taken to ‘protect’ his residence.

58. The respondent submitted that consistent with [46] and [47] of their written submissions the applicant has failed to meet the public interest test. The respondent submitted that the licencing regime is concerned with protecting the pubic, and citing Petas v Commissioner of Police [2013] NSWADT 137 at [36]:

‘Making decisions that are consistent with a need to reduce any risks to a minimum’

59. The respondent made further submissions about the public interest ground for revocation and referred to the maxim that the public interest is an inherently broad concept and is designed to give the broader interests of the community priority over private interests. Reference was made to the decision of Comalco Aluminium (Bell Bay) Ltd v O’Connor and Others )1995) 131 ALR 657 at 681:

The purpose of the reference to 'public interest' is to ensure that private interests are not only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation.

60. Reference was made in written submissions to the case of Uzelac v Commissioner of Police, Ministry of Police [2003] NSWADT 226 where the Tribunal examined the principles relating to safe storage.

1. The legal principles which apply to the revocation of a firearms licence have been set out in previous decisions of this Tribunal. In summary, the following principles can be extracted:

   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] NSW ADT 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])

   in relation to the first three considerations, if the breaches of the Act or regulations are trivial or excusable, as distinct from fundamental, there is less likelihood of a risk to public safety (Cusumano -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 50

   the discretion to revoke a licence must be exercised keeping in mind the nature of the conduct and the principles and objects of the Act; (Yaghi -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 91 at [37].

   61. The respondent submitted that consistent with Uzelac the main issue arising from the safe storage breaches in the current matter was the risk to public safety.

   62. The respondent submitted that the applicant’s actions were potentially dangerous because he left two unsecured (and loaded) firearms on the property. Consistent with earlier reasoning of the Tribunal that the matters occurred in a domestic situation, then the risk of dire consequences was heightened.

   63. The applicant sought to use his firearms for a purpose that was not authorised by his licence / authority, and also contrary to any purpose authorised under the Firearms Act.

   64. The respondent also submitted that in respect of the continued risk, the Tribunal should take note of the applicant’s evidence in the following areas. The applicant self reported ongoing fear and anxiety regarding his stepson’s ‘dangerous, erratic and volatile behaviour’ as referred to in his letter to the Commissioner dated 27 July 2020.

   65. In closing the respondent submitted that even if the identified breaches of the safe storage requirements, and the contravention of s 12 (2) of the Firearms Act were at the lower end of the scale, having regard to all of the matters and the circumstances of events and action taken by the applicant, it remains contrary to the public interest for the applicant to hold a firearms licence.

   66. The respondent submitted that the Tribunal must look at the applicant’s conduct as a whole. The Tribunal should take note of the contravention of the safe storage requirements, the asserted intent to use the firearms for self protection and consequential failure to understand his obligations as a firearms licence holder, and continuing concerns about the behaviour and real threat from the stepson.

Applicant’s submission in reply

67. In reply the applicant’s agent submitted that there is no ongoing risk from the stepson, or risk of a repeat of the behaviour by the applicant. Reference was made to the positive 30 year plus firearms history in this jurisdiction, a history that was unblemished and in respect of breaches of the Legislation remains unblemished.

68. It was submitted at hearing that a violent man would have got his guns and ‘blown the police away’. The applicant submitted that in respect of the totality of the matter some leniency should be afforded towards his situation. A man with not a great many years left should be able to continue to use his firearms in the manner in which he has done so lawfully and without incident.

Consideration

69. The licence was revoked because the Commissioner’s delegate found that the applicant intended to use his firearms for personal protection and that there were resultant concerns about public safety. On Internal Review the reviewer found that it was not in the public interest for the applicant to continue to hold a Firearms Licence.

70. I note that on the notion of public interest the Tribunal has previously considered that matter in a wide-ranging manner and includes such matters as public protection, public safety and public confidence in the administration of a licensing system. The Firearms Act 1996 identifies a purpose to deal with public safety at s 3 (1) (a) of the Act. In the case of Azzopardi v Commissioner of Police, NSW Police Force [2013] NSWADT 205. At [204] of Azzopardi the ADT observed:

1. The Appeal Panel has described the "public interest" as "an inherently broad concept giving the appellant [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual": Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25]. The concept is invoked in order to "ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation": Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, 681. In this context the public's right to safety must outweigh an individual's privilege to possess and use a firearm or any financial impact that might flow from license loss: Huckel v Commissioner of Police [2008] NSW ADT 347, [41].

   71. I note the references in the decision under review to the objects of the governing legislation. Section 3 of the Firearms Act provides:

3 Principles and objects of Act

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

   72. It is clear that these principles and objects provide guidance as to how the provisions under the Act are to be administered.

   73. The case of Webb v Commissioner of Police, New South Wales Police [2004] NSWADT 110 is authority for the position that when looking at the public interest issue in the firearms jurisdiction the primary issue is to see if there is a risk to the public. At [32] of Webb the Administrative Decisions Tribunal (ADT) observed:

2. The principal issue that I have to decide is whether there is a risk to the safety of the public if Mr Webb's licence is reinstated. In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration. In particular, the likelihood of risk to the safety of the public must be assessed by reference to Mr Webb's prior conduct. The conduct of concern is that which has lead to his convictions. It is appropriate that any exercise of discretion accord with the principles and objects of the Act.

   74. As observed above, the facts were uncontroversial other than what applicant believes was said by Officer Greentree (that it was not necessary to provide the personal details), and whether their stated actions constituted the use of a firearm for self protection. In my view whilst the refusal to provide particulars may have had some bearing on Police action on 20 December 2018, the decision appears to be predominantly based on the findings of the breach of the safe storage requirements, and s 12 (2) the self protection / unauthorised use findings. Other than a somewhat semantic argument about how the use does or does not constitute ‘using a firearm for self protection’, as noted there was little dispute about the facts.

   75. I attach little weight to the matters at Exhibit ‘A-3’ as those references do not identify the conduct of the applicant during the incident central to these proceedings. The applicant’s positive and pro social other attributes are acknowledged in coming to the conclusion on the review.

Findings

(1) Breach of Firearms Act

76. The evidence demonstrates that the applicant loaded two firearms with live ammunition and had left them unattended (one at a time) outside of the firearms safe. This is clearly in contravention of s 39 and s 40 (1) (a) of the Firearms Act as the evidence demonstrates that the applicant did not take all reasonable precautions to ensure firearm safekeeping, and not storing his firearms in a locked receptacle when not actually being used or carried.

77. Whilst objectively a serious safe storage breach it is clear that having regard to the applicant’s unblemished record as both a citizen and an authorised firearms user of long standing, the Commissioner determined not to breach the applicant and bring him before the Court. The respondent submitted that no proceedings were commenced for discretionary reasons.

78. I note that s 4 of the Firearms Act defines ‘use of a firearm’ in the following manner:

use a firearm means fire the firearm or hold it so as to cause a reasonable belief that it will be fired, whether or not it is capable of being fired.

79. Clearly the applicant by his own account took the firearm to use in a manner consistent with the definition above, and in doing so, he was not participating in Recreational Hunting (or) Vermin Control. In this regard the evidence establishes that the applicant has used his firearms contrary to the provisions of s 12.

12 Genuine reasons for having a licence(cf APMC 3, 1990 Reg cl 22A)

1. The Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm.

2. An applicant does not have a genuine reason for possessing or using a firearm if the applicant intends to possess or use the firearm for any of the following reasons—

   (a)   personal protection or the protection of any other person,

   (b)   the protection of property (other than in circumstances constituting a genuine reason as set out in the Table to this section).

   80. It is clear from the evidence that the circumstances of the use by the applicant were contrary to his own permitted ‘genuine reason’ under the licence. In addition I find that the use contravened s 12 (2) of the Act as it was clearly being used for personal protection. To alert witnesses to a situation with a firearm in my view constitutes behaviour which falls within the ambit of personal protection. If there was no risk or danger then there would be no need for any ‘alert’. The applicant and his wife were responding to a threat and he took drastic and exigent action to arm himself, and secure the property and plan an escape. On the applicant’s own evidence he believed that his son had arrived at the property and was going to carry out his threats from some hours earlier and harm or even kill the applicant and / or his wife. On this basis his actions clearly on the available evidence fall within the scope of what would be considered the use of a firearm for ‘personal protection’ (his own) protection of ‘any other person’ (his wife) and possible protection of his property.

   81. It would also appear that the conduct falls within the parameters of s 7A of the Firearms Act.

7A Offence of unauthorised possession or use of firearms generally

1. A person must not possess or use a firearm unless the person is authorised to do so by a licence or permit.

Maximum penalty—imprisonment for 5 years.

1. Without limiting the operation of subsection (1), a person who is the holder of a licence is guilty of an offence under this section if the person—

   (a)   uses a firearm for any purpose otherwise than in connection with the purpose established by the person as being the genuine reason for possessing or using the firearm, or

   (b)   contravenes any condition of the licence.

   82. On the available evidence noting the reasoning and findings that I have made above, it would appear that to the civil standard s 7A of the Firearms Act has been breached as the applicant has used a firearm in the circumstances set out in s 7A (2) (a) and I so find.

(2) Findings on Public Interest

83. When looking at the issue of public interest the Appeal Panel of the ADT in the case of Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16.

1. As noted in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 [at 33] the 'public interest' is:

. . .

33.   The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system. In this case the public interest case was a very strong one. The public would, we believe, be quite concerned that a man with a serious history of violence, including violence using weapons, for which he served several years' imprisonment might now be entrusted with a pistol.

84. The applicant has no history of violence. However I interpret aspects of the matters referred to in Toleafoa to mean that notwithstanding the various positive aspects and elements of the applicant’s character, the public interest takes into account the import of aspects of the applicant's behaviour on 18 and 20 December 2018 which has already been found to be a breach (to the civil standard) but also might well be considered reckless. There would be valid concerns that someone who exhibited that behaviour would be entitled to access and use firearms, notwithstanding the absence of any formal adverse matters. The broad concept of the public interest does not directly identify right or wrong notions or positive attributes and assign weight to them. It requires an analysis of the whole circumstances and whether the result sits positively within the public interest.

85. In addition the case law indicates that the individual's interests would always be subordinate to the public interest in the issuing of a licence. This is illustrated by the reference to the case of Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 as set out at [58] above.

86. In Toleafoa at paragraph [25], the Appeal Panel said that the public interest:

"is an inherently broad concept giving [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual".

87. In addition I note that the body of case law indicates that the discretion is to be applied for the public benefit rather than the individual benefit.

88. In my view the legislation and precedents indicate that the discretion is to be applied consistent with the purpose of the Firearms Act, one of which is to ensure public safety in accordance with s 3 (1) (a) of that Act. These matters are also observed at [72] above.

89. I therefore find based on the evidence set out above, that it is not in the public interest for the applicant to have authorised access to firearms. This finding is adverse to the applicant. The applicant has used his firearms for a purpose contrary to the stated purpose in his authority (which is as a result an unauthorised use) and in addition by that use constituting personal protection he has contravened the Firearms Act generally and the use is contrary to the Firearms Act as a whole.

Conclusion

90. Because of the findings that I have made, it is appropriate to affirm the decision of the respondent. Based on the totality of the evidence available to me I have made the findings that I have. As observed in these reasons, the key aspects of the evidence relevant to those findings was not essentially in dispute between the parties.

91. As it is not in the public interest for the applicant to hold a firearms licence, it therefore follows that the correct and preferable decision is to affirm the decision of the respondent.

92. As the applicant’s Category AB licence has during the two years since the suspension process commenced now expired on 30 October 2020, it might be open to the applicant to reapply for a licence.

93. However I note the provisions of clause 12 of the Firearms Regulation.

12 Discretionary grounds for refusal of permit

1. The Commissioner may refuse to issue a permit to a person unless the person has successfully completed such firearms training and safety courses as the Commissioner considers to be appropriate in respect of the permit concerned.

2. The Commissioner may refuse to issue a permit authorising the possession or use of a firearm if the Commissioner is satisfied that the applicant intends to possess or use the firearm for personal protection or the protection of any other person or for the protection of property.

   94. Without making any finding, I note that having regard to the provisions of cl 12 of the Firearms Regulation, and the evidence concerning s 7A and s 12 of the Firearms Act in these proceedings, the Commissioner would need to be satisfied that any risk of use for personal protection had abated prior to issuing a licence.

Orders

1. The decision of the respondent to revoke the Applicant’s Category AB 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: 18 January 2021