Lane v Commissioner of Police, NSW Police Force

[2013] NSWADT 85

Administrative Decisions Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	Lane v Commissioner of Police, NSW Police Force [2013] NSWADT 85
Hearing dates:	15 April 2013
Decision date:	24 April 2013
Jurisdiction:	General Division
Before:	Naida Isenberg, Judicial member
Decision:	The decision under review is affirmed
Catchwords:	Firearms licence - fit and proper person
Legislation Cited:	Firearms Act 1996 Administrative Decision Tribunal Act 1997 Crimes (Sentencing and Procedure) Act 1999
Cases Cited:	Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409. Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 Australian Broadcasting Tribunal v Bond [1990] HCA 33 Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 Re Percival and Australian Securities Commission (1993) 30 ALD 280 Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALD 794 Blissett v Commissioner of Police[2006] NSWADT 114 Re Davis(1947) 75 CLR 409 Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75 Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218
Category:	Principal judgment
Parties:	Jason Lane (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Warren F Ball & Co (Applicant) Bartier Perry (Respondent)
File Number(s):	123361

reasons for decision

Background

1. The Applicant, Jason Lane, applied to the respondent for a firearms licence. His application was refused on the basis that he had been the subject of an Apprehended Violence Order ('AVO') issued in 1999 which expired on 30 June 2004.

1. After the decision, on the Applicant's application, the AVO was revoked. He sought internal review of the decision to refuse him a firearm's licence, but the decision was affirmed on the basis that he was not a fit and proper person and that the issue of the licence would be contrary to the public interest: s.11(3)(a) and s.11(7) of the Firearms Act 1996 ('the Act').

1. He has applied for review of the Respondent's decision.

Relevant Legislation

1. The general principles of the Act are set out in section 3:

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

(c) to facilitate a national approach to the control of firearms.

(2) The objects of this Act are as follows:

(a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,

(b) to establish an integrated licensing and registration scheme for all firearms,

(c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,

(d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms,

(e) to ensure that firearms are stored and conveyed in a safe and secure manner,

(f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.

1. The Act, in setting out restrictions on the issue of licences, provides, relevantly:

...

(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

...

(5) A licence must not be issued to a person who:

...

(c) is subject to an apprehended violence order or who has, at any time within 10 years before the application for the licence was made, been subject to such an order (other than an order that has been revoked)

...

(7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

...

1. Section 63 of the Administrative Decision Tribunal Act 1997('the ADT Act') provides that in determining an application for review the Tribunal 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 restricted to a consideration of the material that was before the Commissioner, 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 179; (1979) 46 FLR 409.

Fit and Proper Person

1. The Tribunal's discretion as to whether a person is fit and proper is a broad one: Commissioner for ACT Revenue v Alphaone Pty Ltd(1994) 49 FCR 589 at 389.

In Australian Broadcasting Tribunal v Bond[1990] HCA 33; (1990) 170 CLR 321, Mason CJ explained, at 380, that:

The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.

1. Toohey and Gaudron JJ said at 380:

The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

A person's fitness is to be considered in the light of the activities that the person will undertake: see In Hughes and Vale Pty Ltd v New South Wales (No.2)(1955) 93 CLR 127 at 156-7, Re Percival and Australian Securities Commission(1993) 30 ALD 280, at 290, Re Brennan & Australian Casino Surveillance Authority(1995) 38 ALD 794, at [41].

EVIDENCE

1. The Respondent provided a bundle of documents under s. 58 of the ADT Act. Included in those documents was a copy of the application and also of the Applicant's criminal and traffic history.

1. An affidavit by the Applicant was tendered, as were 3 character references. The Applicant was not called to give evidence, although he was present at the hearing.

CONSIDERATION

1. The respondent submitted that there were 6 bases on which the Tribunal should come to a view that the Applicant is not a fit and proper person:

• Criminal history
• Continual disregard for licensing regimes and public safety
• Volatile relationships with others
• No evidence of reformation of character
• Insufficient passing of time
• Lack of honesty and candour

Each is discussed below.

Criminal history

1. The Respondent referred to the Applicant's lengthy criminal history as demonstrating a lack of fitness to be a licence holder.

Malicious damage incident: October 1999

1. In the early hours of the morning the Applicant attended premises in Londonderry with another male person. They made enough noise to wake the occupants, who came to the front door and asked them to leave. The Applicant did not leave but instead asked one of the occupants to come outside and fight him. He also made verbal threats to kill members of the family residing at that home. Emergency "000" was called and a report was made for police to attend to the scene. The Applicant reportedly smashed the window and front of a car parked at the premises, causing over $900 damage. The incident appeared to be part of an ongoing dispute between the Applicant and the victims' families. At the time the Applicant denied any involvement in the incident and was never charged.

1. The Applicant's solicitor pointed out that this matter occurred when the Applicant was a juvenile (aged 17).

Drug possession: June 2000

1. The Applicant was a passenger in a vehicle, which was stopped by police for a random breath test, during which police noticed a plastic bowl with green vegetable residue and a pair of scissors located on the dashboard. When questioned, the Applicant admitted that he was the owner of the plastic bowl and its residue and he also produced a clear re-sealable plastic bag containing a small amount of cannabis. He told the police that the cannabis was intended to last him the next few days.

1. He received a caution.

Drug possession: July 2000

1. A few weeks later the Applicant was charged with possessing a small amount of cannabis, which he readily admitted.

1. The Applicant was found guilty but the charges were then dismissed under s. 10 of the Crimes (Sentencing and Procedure) Act 1999.

Malicious damage incident: February 2001

1. The Applicant was seen maliciously scratching the boot lid of another driver's car outside a night club. The owner of that vehicle followed the Applicant as he sped off and there was a car pursuit. Police observed the Applicant driving in a reckless and dangerous manner and there was almost a collision with a police car.

1. The Applicant denied any involvement in scratching the boot of a car outside the nightclub. However the nightclub had CCTV footage of the Applicant engaging in this conduct. I did not understand the Applicant to presently deny this conduct.

1. The Applicant was arrested for driving a vehicle recklessly/furiously or with speed in a manner dangerous. He was originally ordered to participate in 100 hours of community service but the conviction was quashed on appeal.

Offensive language and offensive implement: February 2002

1. Police were attending the scene of an alleged road rage at which at least one person was arrested. The Applicant and others arrived in a vehicle and he was reportedly shouting and using highly offensive expletives and gestures. Despite being warned that he would be arrested if his conduct continued, he persisted. In his affidavit the Applicant said he used words to a group of bullies that had thrown a piece of wood that had broken the window of his car, although the police report was that the conduct was also directed at them.

1. Police searched the Applicant and found a pocket knife with a 4cm blade as well as an aluminium bar and plastic bar, each one metre in length.

1. In his affidavit the Applicant's recollection was that the offensive weapon was an axe in his ute, together with a shovel and spare tyre. He said he used the axe when he went camping and off-roading.

1. The Applicant was arrested and was convicted of using offensive language in a public place and custody of an offensive implement (a knife) in a public place. He was ordered to pay fines of $300 in each matter.

Alleged threat to kill: June 2002

1. The Applicant, while driving, observed a couple changing a flat tyre on their vehicle.(The Applicant's mother has a history of minor verbal conflict with female.) He stopped his vehicle and reversed along-side the couple to speak to them.

1. The Applicant reportedly waved an 8 inch bladed knife at the couple and said words to the effect:

Don't you fucking call my mum a dog or I'll gut you. I'll gut you right now. I'll get you and I will get your wife as well. I'll burn your house down, I'm a bad bugger. If you say anything again I will kill you both

1. The incident was reported but no formal action taken at the request of the victims.

1. The Applicant's solicitor noted, and I accept that this was merely an assertion by a complainant, whose account has not been tested. For that reason I disregard this alleged conduct.

Suspect in a firearms offence: April 2006

1. Police were informed that a person was spotlighting in Nundle, and shooting from a public road in the vicinity of residential houses. Police conducted a patrol of the area and the Applicant, who matched the description provided by the informant, was found standing near his vehicle near the Nundle State Forest. The Applicant was searched and no firearm was located however, the Applicant had two pig dogs with him. The Applicant was given a direction to move on, with which he complied. As there was no evidence that the Applicant was the person using a firearm, or otherwise engaging in unlawful conduct, I have disregarded this conduct.

Drug possession incident and evidence of illegal hunting: February2008

1. The Applicant was a passenger in a vehicle which was stopped for a random breath test. The police officer suspected that the driver of the vehicle may have been under the influence of drugs and conducted a search. The police officer recorded that the vehicle was transporting hunting equipment, five hunting dogs and a quad runner.

1. Police also discovered a small quantity of cannabis and cannabis smoking devices in the vehicle. The Applicant admitted that he was the owner of the cannabis, that he had attempted to hide the smoking device when he realised his friend was being pulled over for random breath testing and, that the cannabis left in the bag was "the last of his supplies", that he had been smoking cannabis for days and that he intended to continue smoking cannabis.

1. The Applicant was convicted and fined for possessing a prohibited drug and possessing equipment for administering prohibited drugs.

1. It was submitted on the Applicant's behalf that he has since ceased cannabis use altogether.

Common assault charge: April 2008

1. The Applicant was reportedly being tailgated by another driver and both vehicles eventually stopped. The Applicant left his car and approached the other vehicle, and had a heated verbal exchange with the driver. The Applicant then slapped the other driver in the face with an open hand, before driving off.

1. In his affidavit the Applicant said the assault was brought about by an antagonist of long standing throwing bottles and assorted other things at him when he was sitting in traffic.

1. The Applicant refused to be interviewed by police in relation to the matter but was charged and convicted of common assault. He was placed on a s.10 bond for 12 months. Further, it was submitted that to have received a second s.10 order is a rarity.

1. It was submitted on behalf of the Applicant that he satisfactorily complied with the condition to be of good behaviour for 12 months.

Malicious damage incident: February 2011

1. The Applicant drove to the home of his mother and her de facto ('his stepfather') and had a verbal dispute in relation to family issues. (The Applicant is estranged from his stepfather, and it was contended on his behalf that he was trying to get his mother to leave.) The Applicant was apparently very angry and aggressive and shook a wire fence until it broke. The Applicant was reported as saying to his stepfather:

"I am going to kill you, I am going to shoot you, you old bastard"

1. His stepfather picked up a boulder and dropped it on the bonnet of the Applicant's vehicle, smashing the windscreen. As a result the Applicant became incensed and, in retaliation, the Applicant drove through the front gates of the property - which were secured by three padlocks - pushing the gates open and causing one gate to come off its hinges. The Applicant then drove into his stepfather's van, leaving a large dint in its side.

1. The Applicant was arrested and placed into custody. In the record of interview, he declined to answer any questions other than stating he did not feel that he damaged the wire fence.

1. In his affidavit he said he told the Court that on that he had driven to his mother's on the way home from work to talk to her about serious threats that had been made to her by her long-standing partner including threats to beat her, kill her and make her disappear. He stopped his 4WD outside the fence and spoke to his mother through the fence pleading with her to leave. She refused and they argued and, having heard them arguing, her partner ran out of the house, picked up a sandstone rock and threw it over the fence, breaking the Applicant's windscreen, before running away. The Applicant said he was very angry at what he had done, unprovoked by him, and he jumped into his car with its smashed windscreen and other damage and drove it into his step-father's car and then left.

1. As a result of this incident, his stepfather, who himself was charged and convicted in relation to the boulder) applied for an AVO order against the Applicant. A provisional AVO was made on which later became an interim order only because his stepfather did not attend the hearing.

1. The Applicant was convicted and received a s.10A conviction. It was submitted that he has not breached the bond condition.

Traffic record

1. The Respondent submitted that the Applicant has a disregard of traffic licensing and safety laws which demonstrates a disregard for (and lack of appreciation for) public safety and licensing requirements.

1. The Applicant has been driving since 1998.Since that time he has lost his driver's licence driving twice due to failure to pay fines and loss of demerit points. Of the offences, two related to failure to display a P sign (2000), 5 related to exceed speed limit by more than 15kms but not more than 30kms (2001, 2004 x2, 2006, 2009), one related to ride motor bike without helmet (2003), and one unlicensed driver/rider (2003).

1. Most recently, in 2012,after his application in the present matter, he was fined for not wearing a seatbelt. In submissions his solicitor said that the Applicant had a pain in his shoulder which prevented his use of a seatbelt and he was able only to hunch over the wheel. It was said he obtained a medical certificate but did not, somewhat inexplicably to me, defend the matter. I did not have the opportunity to hear from the Applicant himself about this claim.

1. It was conceded on the Applicant's behalf that his driving record was 'not [one] to be proud of', but that did not mean the Applicant is not a fit and proper person to hold a firearms licence. It was submitted he should not be considered as a person who would be a danger on the road to others. It was noted that none of his speeding offences were for driving at a speed greater than 30 kph.

Continual disregard for licensing regimes and public safety

1. The Respondent submitted that by breaching traffic laws the Applicant has demonstrated a general disregard for licensing schemes and public safety. I was referred to Tannous v Commissioner of Police [2011] NSWADT 116 at [32] and [37] where the Tribunal held that traffic laws and regulations are aimed at ensuring public safety and that repeated breaches of those laws indicates a disregard for regulatory schemes with that very aim, such as the firearms legislation.

1. The Applicant's solicitor submitted that the Applicant's driving record was not a bad one for someone who drives every day. I note that the Applicant drives and operates a concrete pump. Again, I did not have the opportunity to hear from him as to the extent of his driving involved in transporting concrete to a venue compared to dispensing the concrete once there. Many people drive 'every day' with far better records than the Applicant.

1. In the last 15 years, he has 10 traffic incidents. I consider it especially relevant that he has lost his driver's licence twice due to failure to pay fines and loss of demerit points. No explanation was offered for this disregard of his obligations to pay fines. By his own account he was in virtually continual employment so it is unlikely that he was unable to pay the fines for financial reasons. That conduct suggests to me a disregard for not only the safety scheme of the road rules, but also a failure to acknowledge the consequences of a breach of those rules.

Volatile relationships with others

1. There is evidence the Applicant had a volatile relationship with members of his community, and in particular, his stepfather. He has used abusive language and has been convicted of common assault. He has reportedly made verbal threats against the life of others. It is unclear whether he would actually act on those threats, but they are very explicit. For example, in 2011, the Applicant was alleged to have said "I'm going to kill you, I'm going to shoot you, you old bastard". The Applicant has been the subject of AVOs which suggests to me that the threats were thought to be serious by the Applicants for the AVOs.

No evidence of reformation of character

1. Rather than directly addressing the criminal matters referred to above, the Applicant sought, in his affidavit and through his solicitor, to downplay the nature of his convictions by relying on factors such as his youth or by submitting the conduct was provoked.

1. His recollection of the 2002 incident in which he was charged with offensive language and carrying an offensive weapon is at odds with the police account. I prefer the contemporaneous police account to the recollection of the Applicant, now over 10 years after the event.

1. Similarly, it was submitted on his behalf that the Applicant is a person of limited education who, in those circumstances, has done well, from an employment perspective. He trained in panel beating, powder coating and foundry work. One role was as a qualified ferry driver for about 2 years - a responsible job which he apparently did without receiving any complaints. He then did wrought iron welding for a couple of years and then worked for another ferry company for another 2 years. He had a 6 month break and for the last 3 years has driven and operated a concrete pump. I accept that the Applicant appears to have been in stable employment for the majority of his working life. However that stability of employment was a constant throughout the period in which he offended.

1. In his affidavit the Applicant conceded that in some respects he had "a misspent youth". He said he regrets ever having an involvement with marijuana. As to the assaults he was involved in, he said in hindsight it would have been better for him to have walked away.

1. The Applicant's assertion that he had a "misspent youth" seems somewhat ill-founded to me: his last criminal conviction was recorded on 22 March 2011 when he was 29 years old and his last traffic incident was only last year when was 30 years old.

1. He claimed to have" turned [his] life around completely". He noted that he still lives with his grandmother (who brought him up) as he has done for 18 years, and that he is still single. However, this was no different to his personal circumstances when all the offences were committed. It is therefore difficult to attach any weight to this claim as evidence of reformation.

1. He said his family has a sheep farm at Mudgee which he visits very regularly and where he helps with the farm work. He said that there are many times when, if he could use a firearm, it would be of great help particularly if an animal had to be killed. His usefulness there, it was submitted, would be enhanced.

1. He said he works long hours - sometimes six days a week. All his life his main interest outside work has been fishing, hunting and camping, which he does at every opportunity. He travels long distances to fish, including trips to New Zealand. Apart from fishing he has always also enjoyed hunting which he sometimes does with a friend, although he often hunts alone with his 9 pig hunting dogs, which he breeds at some expense. He considered himself to be a very responsible and cautious hunter and always takes care to see no harm results from what he or his dogs do. I did not have the opportunity to hear from the Applicant as to the manner he claims to act responsibly in this activity.

1. As to the weight to be given to the references provided by the Applicant I consider little weight can be attached to those references because it is unclear whether the referees were aware of the Applicant's offences and whether, despite those offences they still believe the person to be of good fame and character: Sawires v Commissioner of Police [2010] NSWADT 4 at [52] and [53].

Insufficient passing of time

1. The Respondent submitted that there has not been a sufficient elapsing of time period since the Applicant's last offence, in light of his history, such that this Tribunal can be satisfied that the Applicant will not reoffend: Blissett v Commissioner of Police [2006] NSWADT 114 at [31]. I noted above that his last conviction was in 2011 and that his last traffic incident was only last year.

Lack of honesty and candour

1. When applying for the licence, the Applicant did not record that he had been the subject to an AVO in the ten years prior to making of the application for a licence. There was no explanation as to why this occurred and I did not hear from the Applicant as to why this error may have been made.

1. The respondent submitted that the Applicant's lack of candour and frankness in his licence application demonstrates no change in character and that he is a person lacking in the necessary fitness and propriety. I was referred to Re Davis(1947) 75 CLR 409 where the High Court found that dishonesty and a lack of candour and frankness demonstrates that a person is not of good fame and character. I consider that the disclosure of the AVO would have greatly assisted the Applicant in an endeavour to show that he had retrieved his character: per Latham CJ at 416.

1. Even if I were to accept that the statement was not made with intention to mislead, it was nevertheless made without an appropriate degree of care. I am concerned as to that lack of care and lack of personal responsibility for the strict requirement for disclosure.

Conclusion

1. A firearm licence is a privilege and not a right. Responsibilities of 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: Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75 at [25].

1. I accept that the Applicant committed offences as a young person. I accept that since 2006 he has eschewed cannabis. However in the last 5 years the Applicant has had two very serious charges: common assault (April 2008) and malicious damage (2011). It may be that each event was precipitated by the conduct of others as the Applicant claims. It remains, however, that he retaliated when provoked.

1. His driving record is of less significance but does demonstrate a continuing disregard for safety laws, including as recently as last year.

1. I accept that there is evidence of volatile relationships with others. The making of threats is not reflective of a fit and proper person. As recently as 2011, he reportedly threatened to shoot his stepfather. As I understand the position, he did not dispute the allegation or the words used. Given the opportunity, I cannot be assured the Applicant would not use a firearm when provoked.

1. Based on the facts and circumstances set out above, I cannot be confident that the Applicant would possess and use firearms in accordance with the strict legislative requirements.

1. The Applicant considers, it was submitted, that his usefulness around the farm would be enhanced if he were able to shoot. Further, hunting is one of his few interests. However, an Applicant's personal interest in having his licence cannot outweigh the public interest: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [22].

1. The underlying principles of the Act stated in section 3(1) emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, at [28], DP Hennessy said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk". I cannot be so satisfied.

1. I find that the Applicant is not a fit and proper person for the purposes of the issue of a firearms licence.

DECISION

The decision under review is affirmed.

**********

Amendments

30 April 2013 - removed hyperlink references in cases cited field

Amended paragraphs: coversheet

Decision last updated: 30 April 2013