Latella v Commissioner of Police

[2020] NSWCATAD 211

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Latella v Commissioner of Police [2020] NSWCATAD 211

Hearing dates:

On the papers

Date of orders:

1 September 2020

Decision date:

01 September 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

K Ransome, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

ADMINISTRATIVE REVIEW – firearms dealer licence and personal licence – revocation – contraventions of Firearms Act - whether not in the public interest for applicant to hold the licences

Legislation Cited:

Administrative Decisions Review Act 1997

Firearms Act 1996

Firearms Regulation 2017

Cases Cited:

Bevan v The Commissioner of Police, NSW Police Service [2004] NSWADT 1

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

Commissioner of Police v Joseph [2016] NSDWCATAP 124

Constantin v Commissioner of Police [2013] NSWADTAP 16

Cook v Commissioner of Police [2003] NSWADT 30

Cusumano v Commissioner of Police [2001] NSWADT 50

Davos v Commissioner of Police, New South Wales Police Force [2013] NSWADT 7

Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117

Kopco v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 124

Laing v Commissioner of Police, NSW Police Force [2017] NSWCATAD 315

Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276

Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97

Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206

Ward v Commissioner of Police [2000] NSWADT 28

Wiltshire v Commissioner of Police [2005] NSWADT 75

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Diego Latella (Applicant)
Commissioner of Police (Respondent)

Representation:

Counsel:
D McMahon (Applicant)

Solicitors:
Murphy’s Lawyers Inc (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2019/00118487

Publication restriction:

Nil

REASONS FOR DECISION

1. This is an application by Mr Diego Latella seeking review of a decision by the Commissioner of Police, NSW Police Force (the Commissioner) under the Firearms Act 1996 (the Firearms Act) to revoke his firearms dealer licence, his permit to acquire and supply ammunition and his personal category ABHG firearms licence. The decision to revoke his licences and permit was made on 7 February 2019. That decision was affirmed on internal review on 28 March 2019.

2. The decision to revoke the licences and permit was made on the basis that Mr Latella has contravened provisions of the Firearms Act and that it was not in the public interest for Mr Latella to hold a firearms licence or permit. The decision followed on from proceedings in the Coonabarabran Local Court in which the following offences were found proven against Mr Latella:

1. licensee not store ammunition in restricted area as required (conditional release order without conviction for a period of nine months);

2. firearms dealer fail to ensure security of displayed firearm (conditional release order without conviction for a period of nine months);

3. licensed firearms dealer fail to keep labels and records required (conditional release order without conviction for a period of nine months);

4. failed to record prescribed information for supply of ammunition (found proven and dismissed under s 10 of the Crimes (Sentencing Procedure) Act 1999); and

5. failed to enter record required within 24 hours (found proven and dismissed under s 10).

3. Other matters relating to possible contraventions of the legislation were also relied upon by the Commissioner in making his decision to revoke the licences and permit.

Background

4. Mr Latella has held personal firearms licences since early 2002, the most recent of which was issued on 26 March 2017. On 21 November 2015 a firearms dealer licence was issued to the trading name “Skins and Things Coonabarabran” owned by Mr Latella. On 25 November 2016 Mr Latella was listed as the licence holder of the Coonabarabran Pistol Club.

5. On 2 May 2018 Mr Latella was working at his shop, Skins and Things, when a customer who he had known for some years, Jason Isedale, came into the shop. On that day he sold a box of .22 Hornet ammunition to Mr Isedale whose firearms licence at the time was suspended, a fact which was known to Mr Latella. He admitted this to police on the day when they attended his shop after having apprehended Mr Isedale nearby.

6. The next day police attended Skins and Things to issue Mr Latella with a suspension notice for his firearms licences and to seize all firearms and ammunition. While there police identified a number of issues which led to Mr Latella being charged with various offences under the Firearms Act. The police found live ammunition on a table in the area in front of the counter which was publicly accessible. Details of the type of ammunition and cost were written on the box and bags containing it. The ammunition was seized as it was not in a secured and restricted area. Mr Latella was later charged with the offence of “Licensee not store ammunition in restricted area as required” which was found proven on 25 January 2019.

7. Police also located a .303 calibre rifle, with magazine attached, hanging from two hooks in the ceiling above the counter. It was not secured and could be lifted from the hooks. To the rear right of the counter there were also two other firearms attached to a mesh wall by cable ties. Under s 48 of the Firearms Act a firearms dealer must ensure that any displayed firearms are secured in such a manner as would reasonably prevent their removal otherwise than by the dealer or any employee of the dealer and to prevent them from being stolen. The offence of “Firearms dealer fail to ensure security of displayed firearm” was found proven on 25 January 2019. The firearm attached to the two hooks in the ceiling was in fact registered to Mr Latella’s personal firearms licence.

8. While seizing Mr Latella’s firearms police noticed that six firearms did not have labels attached displaying the registration number of the firearm and the serial number as required by s 47 of the Firearms Act. In addition, a firearms dealer is required to keep a record for all supplies of ammunition. Upon inspecting Mr Latella’s ammunition register, police found instances where required details had been omitted. Offences relating to these matters were also found proven on 25 January 2019.

9. Whilst at the shop on 3 May 2018 police also located a GSG Firefly .22 calibre pistol which was disposed of by a firearms dealer in Queensland on 21 August 2017. Police state the firearm was acquired by Mr Latella but was never registered by him in NSW. Under s 36 of the Firearms Act the firearm was required to be registered in NSW within 24 hours of it coming into Mr Latella’s possession. He was charged with this offence which was found proven and dismissed under s 10.

10. Mr Latella pleaded guilty to the offences with which he was charged. As a result of the offences Mr Latella was subject to a 9 month conditional release order which expired on 25 October 2019.

11. Police also reported that when they inspected Mr Latella’s shop on 3 May 2018 they opened a gyprock door behind the counter which had no locks and found a number of unsecured firearms on the floor behind the door.

12. In the decision to cancel the licences and permit it was stated that arising out of the 2017 amnesty, Mr Latella handed 10 firearms to the police for destruction. One unregistered firearm, however, remained in his possession and was seized on 3 May 2018. Concerns were raised as to why the firearm had not been registered with the dealership or disposed of along with the other firearms. Mr Latella insists that this firearm was registered by him at the time at the time and points to errors in the police record keeping as the wrong serial number was recorded in some of the police records.

13. When Mr Latella’s licences were suspended on 3 May 2018 he was required to surrender all firearms in his possession. One of those firearms, a double-barrel shotgun which was registered to his personal licence, was not in fact surrendered until 9 April 2019.

14. On 5 July 2019 Mr Latella was charged with selling ammunition to a person whose licence was suspended (Mr Isedale) in contravention of s 65 of the Firearms Act. The charge was withdrawn on 23 January 2020.

The application for review

15. The Tribunal has administrative review jurisdiction over a decision, or class of decisions, of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review: s 9(1) Administrative Decisions Review Act 1997 (ADR Act).

16. Section 75 of the Firearms Act confers jurisdiction on the Tribunal to review certain decisions including a decision to revoke a firearms licence.

17. In his application for review Mr Latella states that it is not against the public interest for him to retain his firearms dealer licence and associated ammunition permit and his personal firearms licence.

The relevant law

18. Two of the underlying principles of the Firearms Act are:

1. to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and

2. to improve public safety:

1. by imposing strict controls on the possession and use of firearms, and

2. by promoting the safe and responsible storage and use of firearms.

19. Additionally, the Firearms Act’s objects include:

• to provide strict requirements that must be satisfied in relation to licensing of firearms, and the acquisition and supply of firearms, and

• to ensure that firearms are stored and conveyed in a safe and secure manner.

20. Section 24 of the Firearms Act sets out the circumstances in which a licence may be revoked. It relevantly provides:

“24 Revocation of licence

…

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.”

   21. For the purposes of s 24(2)(d), clause 20 of the Firearms Regulation 2017 provides:

“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.”

22. Similar provisions apply with respect to the revocation of permits issued under the Firearms Act. A permit may be revoked by the Commissioner

1. for any reason for which a licence may be suspended or revoked under the Firearms Act (s 30), or

2. if the Commissioner is satisfied that it is not in the public interest for the permit holder to continue to hold it (cl 21 of the Firearms Regulation) , or

3. if the Commissioner is satisfied that the permit holder no longer has a legitimate reason for possessing or using the firearm or the ammunition to which the permit relates (cl 21 of the Firearms Regulation).

23. The Commissioner has identified the following grounds in support of his submissions that Mr Latella’s licences and permit should be revoked:

• because he has contravened the firearms legislation and,

• as offences under the Firearms Act have been found proven against Mr Latella, it is not in the public interest for him to continue to hold firearms licences or a permit.

Contravention of the Act

24. As set out above, several offences under the Act have been found proven against Mr Latella. It has been consistently stated that the legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences: Davos v Commissioner of Police, New South Wales Police Force [2013] NSWADT 7 at [117].

The public interest

25. What is meant by the term “the public interest” has been discussed in many cases. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, the Industrial Relations Court stated at 681:

“The purpose of the reference to 'public interest' is 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.”

26. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33] the Appeal Panel said that:

“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.”

27. In Cusumano v Commissioner of Police [2001] NSWADT 50 at [23] Deputy President Hennessy stated:

“There is no guidance in the legislation in relation to how these discretions [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.”

28. Importantly, s 3 of the Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Thus, it is the community’s interests which take precedence over the private interests of an individual. In Ward v Commissioner of Police [2000] NSWADT 28 at [27-28] Deputy President Hennessy said that in terms of public safety:

1. …The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms.

2. 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.”

   29. That case dealt with whether the applicant was a “fit and proper person” to hold a licence, but the comments have been held to apply to the public interest test as well: Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206, at [130] – [134].

   30. The question of risk is not, however, to be approached in an absolute or mechanistic way, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 at [64] – [66]; Laing v Commissioner of Police, NSW Police Force [2017] NSWCATAD 315 at [62]-[64]. The question is whether there is in all the circumstances a real and appreciable risk to the public: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117 at [74]; Kopco vCommissioner of Police, New South Wales Police Force [2018] NSWCATAD 124 at [58].

   31. It has also been stated that the public interest requires that all licensees be aware of, and comply with, the legislative requirements: Cook v Commissioner of Police [2003] NSWADT 30 at [34]. Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them: Wiltshire v Commissioner of Police [2005] NSWADT 75 at [25].

Evidence

32. Mr Latella said that on 2 May 2018 Mr Isedale came into the shop and asked him for a box of .22 Hornets. Mr Latella said he tried to ignore Mr Isedale but he went on and on about his divorce and harassment by the police. He said it went on for about 45 minutes and customers were coming in and out of the shop. In the end, to get rid of him, Mr Latella picked up a box of the ammunition, put it on the counter and Mr Isedale paid him for it and then left. He said that five minutes later he remembered that Mr Isedale was unlicensed. He conceded that he did not contact police immediately to tell them what had occurred but said that the police arrived about 20 minutes later to question him about the sale of the ammunition.

33. In relation to what happened the following day when police came to his shop, Mr Latella contends that any risk that anyone could have removed the firearms affixed to the wall and hanging from the ceiling was low. He states that the two firearms secured to the heavy duty mesh with cable ties were in a restricted area and the third firearm was some 2.7 m above the floor and 2 m behind the front desk and as such was well beyond reach without a ladder or something similar. He told the Tribunal that the firearms were only removed from the safe that morning and chains and trigger locks were to be applied once they were properly hung. He also stated that at all relevant times he was present and there were also other security features such as CCTV and a panic button. He said that a person would have had to have entered the store during the brief time before the firearms were finally secured, overpower him and cut the firearms in question from their mounts. Mr Latella said that the .303 was a bolt action firearm dating from the Second World War and was therefore not easy to load and fire.

34. Senior Constable Jason Turnbull gave evidence at the hearing that he was present on 3 May 2018 when Mr Latella’s shop was inspected and his licence suspended. He stated that officers who were present easily lifted the .303 rifle which was suspended from the ceiling off its hooks. He also stated that some of the ammunition contained in the bags on the table in front of the counter could be used in a .303 rifle. He said that the bags and boxes on the table containing ammunition had handwritten prices and quantities on them which would indicate that they were therefore for sale. In relation to the firearms displayed on the wire mesh, he said that a person would need to cut the cable ties to remove them. He said that the mesh up against the wall was behind the counter and the firearms were attached about 9 feet from the floor.

35. When interviewed by police at Coonabarabran Police Station on 22 June 2018, Mr Latella said that that the two firearms attached to the mesh had been temporarily secured with cable ties and had been there for a couple of days while he was awaiting some new trigger locks and cable locks to secure them permanently. He said that the .303 rifle above the counter, that is the firearm hanging from the hooks, had been there for a little longer. Senior Constable Turnbull told the Tribunal that what Mr Latella said in the interview was the same as he told police when they came to his shop on 3 May 2018. At the hearing Mr Latella said several times that he had hung the firearms up that morning, that is on 3 May 2018, and that he had left them there while he organised the shop intending to later complete the display. He also said that he had trigger locks and was not in fact waiting on new ones before finishing the display. He said that when questioned during the police interview he was tired and confused.

36. Mr Latella states that the ammunition, while it was located on a table in front of the counter when police attended on 3 May 2018, was only to be there for a short period until he had managed to pack it away. He said that he had brought the ammunition to the store from his home that morning already labelled and bagged. He said it had been his intention to empty out the zip lock bags into cartridge ammunition boxes that he keeps at the shop. When questioned at the hearing he said that he opened the shop between 9:30 and 9:45am and that the police arrived around 11:30am. He said that by the time the police arrived he hadn’t got around to removing the ammunition from the table. Mr Latella agreed when questioned that the table on which the ammunition was placed was used for the display of items for sale but denied that the ammunition was for sale.

32. Senior Constable Turnbull stated that there was no record in the register of the sale of ammunition to Mr Isedale on the previous day. In addition, a number of entries in the register were lacking details which made it difficult to trace to whom Mr Latella had sold ammunition. He stated that when checks were done, all of the people with missing details were appropriately licensed.

33. Mr Latella acknowledged that he had made errors in recording details of the sales of ammunition but said that all persons could be identified from the information that was provided. Police record 10 instances between 2016 and 2018 where the register entries were incomplete.

34. During the interview with police on 22 June 2018, in response to a question around his knowledge about the safe storage requirements of displayed firearms, Mr Latella said that he knew the requirements but said he was “a little bit laxed (sic) because we are in Coonabarabran, it’s not a, it’s not Sydney”. At the hearing when questioned about the statement Mr Latella denied that this statement meant that he was lax in abiding by his obligations as a dealer. He said that his statement did not mean that a lesser standard applied to him because he was in Coonabarabran but rather that he had been a bit lax in not putting locks on the display guns straight away and there was little risk as he was located in a quiet town such as Coonabarabran.

35. The firearm which was hung from the ceiling with two hooks was registered to Mr Latella’s personal firearms licence. This firearm was registered to his home address and there is no record of any advice that the location had been changed as required by cl 17 of the Firearms Regulation. Clause 17 requires the holder of a licence to advise the Commissioner within 14 days after any change in address of the premises at which the firearm is kept. In his statement to the Tribunal, Mr Latella states that he had only taken the firearm to the shop on 2 May 2018 and had two weeks from that date to notify the registry of the change of address.

36. The decision of the Commissioner referred to a firearm J9851 as being un-registered. Mr Latella has provided a document indicating that it was in fact registered to him on 18 September 2017 and the Commissioner acknowledges this to be the case.

37. In relation to the firearm which Mr Latella acquired from a dealer in Queensland in August 2017, he states that the firearm was registered in Queensland and was purchased for a member of the Coonabarabran Pistol Club. He states that there was some delay with the member’s permit to acquire and he had kept the firearm in safe storage. Mr Latella points out that he was charged with possession of an unregistered firearm but this charge was in fact withdrawn by NSW Police.

38. The Commissioner points out, however, that this firearm is not considered a registered firearm because it was not registered in NSW as required within 24 hours after coming into Mr Latella’s possession as required by the Firearms Act. The Commissioner notes that this firearm was in his possession for approximately seven months.

39. The Commissioner refers to a firearm which was not immediately surrendered to police. Mr Latella states that at no time was the firearm which was not surrendered until April 2019 unsafely stored. He states that he assumed that the police would attend to pick up the firearm from its storage location at his partner’s house which had been the recorded safe storage location since 2006. He says that when he received the internal review decision which alerted him to the fact that the firearm was still at this address, he took immediate steps to ensure that the firearm was surrendered.

40. Mr Latella states that he has suffered immense financial strain since his licence was suspended and then revoked. He states that he has undertaken further training and designed new work systems to ensure that any future risk can be avoided or minimised. He also points to his role within the community and the work that he has done reviving the local pistol club. Mr Latella provided a number of references from people he has known for some time, either personally or professionally. They attest to his good character, the importance of his role in the Coonabarabran community and his commitment to dealing safely with firearms.

Submissions

46. Mr Latella submits that the offences which were found proven against him were of a regulatory nature and ultimately in light of the nature of the offences, the circumstances and his good character, no conviction was recorded for any of the offences. As noted above, he was placed on a 9-month conditional release order which has since expired. Mr Latella has not come to the attention of police in the meantime.

47. Mr Latella submits that the heart of this application for review is a question of proportionality. As I understand it, this submission is made on the basis that Mr Latella has been the responsible holder of a personal firearms licence since 2002, has held his dealer licence for a relatively short period since 2015 and voluntarily participated in the 2017 firearms amnesty and assisted in the surrender to police of firearms. He fully cooperated with police arising out of the events which occurred on 3 May 2018 and none of the offences to which he pleaded guilty carried anything more than a fine as the maximum penalty. He does not assert that the offences are trivial but states that he does not have a history of ongoing non-compliance. While acknowledging that a firearms dealer must take responsibility for their operations and that ignorance of the relevant regulations is no excuse, Mr Latella submits that he was a relatively inexperienced dealer in a complex regulatory environment and has in fact completed further training to reinforce his awareness of his obligations.

48. Mr Latella disputes the Commissioner’s assessment of the level of risk in relation to the contraventions concerning the displayed firearms on the basis that easy access could not be gained to those firearms by any person who entered the shop. This is particularly the case as, by his account, they were placed there only on the morning of 3 May 2018. As noted above, Mr Latella also disputes some of the factual bases upon which the original decision was made concerning some of his firearms.

49. Mr Latella states that most of the breaches of 3 May 2018 occurred because he had opened the store before completing the task of storing ammunition and securing the displayed firearms. He submits that the totality of the material does not reveal that he is engaged in a course of conduct which would lead to a conclusion that he cannot be trusted to comply with the legislation. Mr Latella states that he has learned from his mistakes and in a statement provided in these proceedings outlined some of the steps that he would take to avoid any future contravention.

50. Mr Latella submits that having felt the weight and consequences of his actions, he is a person who is going to be extra careful in relation to his responsibilities in the future. He submits that it is not contrary to the public interest that he hold the licences and that the contraventions detected back in May 2018 do not now justify revocation. He submits that he would not pose a risk to public safety if he had access to firearms. Furthermore, he submits that, at the very least, the contraventions which largely relate to the operation of his firearms business, and hence his dealer licence, do not justify the revocation of his personal licence.

51. The Commissioner submits that the offences committed by Mr Latella in the context of his role as a firearms dealer are significant and serious. In response to Mr Latella’s submissions, the Commissioner states that while the concept of proportionality may have some relevance in criminal sentencing, it has no place in the conduct of administrative review under the Firearms Act where the public interest in ensuring safety is paramount. He states that the requirements imposed upon firearms dealers are detailed and necessary for public safety.

52. The Commissioner submits that a firearms dealer must be held to high standards and in the circumstances of this case, Mr Latella has failed such standards. He submits that the fact Mr Latella had ammunition packaged and priced within public view meant that it was there for the purpose of sale. Furthermore, the displayed firearms were unsecured and the only way that the public could be protected was by the presence of Mr Latella. The Commissioner states that, if Mr Latella was distracted or left the premises to go to his camping store next door, a person could walk in and take the firearms off the wall along with ammunition and nothing could stop them.

53. The Commissioner states that, while it is accepted that mistakes can be made, in light of the serious nature of the mistakes and the importance of the role and functions of Mr Latella and the training that he was provided with, his mistakes demonstrate not a misunderstanding of his obligations, but rather an unwillingness to comply with them. He states that the failings of Mr Latella identified in this matter are not one-off failings but almost a course of conduct where the requirements imposed on firearms dealers and licence holders that are well-known have not been complied with by him. The Commissioner states that there can be no confidence that Mr Latella will in future comply with the strict obligations imposed on licence holders.

Consideration

54. It is accepted that prior to 3 May 2018 Mr Latella had not come to the adverse attention of police for the misuse of firearms or irregularities concerning his business as a firearms dealer. In making his decision, the Commissioner took into account a range of matters, including the offences to which Mr Latella had pleaded guilty.

55. The Commissioner referred to a safe storage inspection in September 2010 at Mr Latella’s nominated storage address at the time during which the police reported that five registered firearms were not at that location but had been moved to his current residential address. The Commissioner states that this is a contravention of the Firearms Regulation in that Mr Latella had not advised of the new location. I note that no charges arose out of this inspection and there is no information as to when the firearms were moved so as to indicate whether Mr Latella had in fact advised of the change of location within the allowed period of time under cl 17 of the Firearms Regulation. I do not consider this matter to be of great relevance to the current issues before me.

56. The Commissioner also referred to certain other matters involving Mr Latella dating back more than 30 years but I consider that these matters have very little bearing on issues relating to his licences and permit. The Commissioner made much of the fact that one of Mr Latella’s firearms was not surrendered at the time his licence was suspended on 3 May 2018. This firearm was stored at another safe storage address and I accept Mr Latella’s evidence that he assumed the police would make arrangements to recover the firearm from that address which was known to them. I also accept that, when it was drawn to his attention, Mr Latella made arrangements for the firearm to be taken to the police station immediately. There is no evidence that the firearm was not safely stored at any time. I draw no adverse conclusion regarding this firearm.

57. There are, however, a number of matters of considerable concern in relation to the offences found proven against Mr Latella in the Coonabarabran Local Court and the events leading up to and including the police inspection of his shop premises on 4 May 2018.

58. A dealer must be satisfied that a person is licenced before selling ammunition to them. This is an integral element of the licensing system in NSW which aims to strictly control the possession and use of firearms to improve public safety. Of serious concern is that Mr Latella sold ammunition to Mr Iselade at a time when he knew Mr Isedale was unlicensed. Indeed, Mr Latella had the firearms which had been taken from Mr Isedale when his licence was suspended and Mr Isedale was clearly known to him. It is no excuse that he did what Mr Isedale wanted in order to get him out of the shop so he did not disturb other customers. Mr Latella said he realised what he had done a short time later, but he did not do anything about that such as contact police to let them know Mr Isedale was in possession of ammunition. The fact that the charge in relation to the sale was later dropped is of no consequence in this matter as Mr Latella admits that he made the sale to an unlicensed person contrary to his responsibilities as a licensed dealer. Furthermore, he failed to record the sale in the register.

59. In relation to recordkeeping, the evidence is that all dealers are provided with information concerning their obligations with respect to the acquisition and disposal, serial numbers, tagging firearms. Mr Latella therefore knew or ought to have known of his obligations in this regard. The evidence is, however, that Mr Latella failed to comply with these obligations. He also failed to record details of ammunition sales on a number of occasions from 2016 to 2018. Mr Latella sought to minimise the nature of these failings by stating that there was sufficient information in the entry that he made to establish the licence holder’s identity. That may or may not be so but does not excuse the failure to comply with his obligations. As noted above, in relation to the sale to Mr Isedale there was simply no record at all of the transaction which clearly undermines the established process of recording and controlling the sale of ammunition as an element of the system set up to ensure public safety.

60. Similarly, the evidence is that Mr Latella was well aware that ammunition was to be appropriately stored at all times. When police entered the shop of 4 May 2018 they found ammunition displayed on a table in front of the counter. This ammunition was easily accessible by anybody who entered the store. Mr Latella’s explanation that he had brought the ammunition in from home that morning and intended to store it properly in the shop is not credible. At no point has he offered any explanation for why in those circumstances details of the ammunition and prices were displayed on the bags. It was apparent that he intended to display the ammunition for sale in the shop contrary to requirements. Even if I were to accept that he intended to store the ammunition safely, he opened the store without doing it and left the ammunition there for several hours before the arrival of the police. He has proffered no explanation for why he did not safely store the ammunition prior to opening the store.

61. The evidence with respect to the firearm located in Mr Latella’s shop which was registered in Queensland but not in NSW was unsatisfactory. It seems that the firearm was in fact acquired by Mr Latella but it simply sat in his shop awaiting somebody else to obtain a permit to acquire it. No explanation has been offered as to why this process took so long and why, having acquired the firearm, Mr Latella failed to register it within 24 hours as he was required to do.

62. Turning now to the firearms that were displayed in the shop on the morning the police attended, there is no question that these firearms were not securely displayed. One was hanging from hooks attached to the ceiling and the evidence of Senior Constable Turnbull was that it could simply be lifted off the hooks by standing on a stool. The other two firearms were attached to wire mesh with cable ties which could be cut by somebody with intent. Mr Latella states that he was present throughout the morning and there was therefore no risk of the firearms being removed but that does not explain why he did not secure the firearms before opening the shop.

63. One of the most concerning aspects of this matter is that the evidence given by Mr Latella about the displayed firearms is inconsistent with that which he gave to the police at the time. The transcript of his recorded interview with police on 22 June 2018 clearly records that Mr Latella told police that the two firearms on the wall had been there for a couple of days and that the rifle hanging from the hooks had been there for longer. His evidence at the hearing, however, was that he had only put the firearms there earlier that morning. When asked to explain why his accounts differed, he said that he was tired and confused when questioned during the police interview. However, his responses to the police during the interview were detailed, occurred early on in the interview which commenced in the early afternoon and were repeated. Senior Constable Turnbull also gave evidence that what was said during the interview was the same as the account given to police by Mr Latella on the day.

64. I do not accept Mr Latella’s evidence given at the hearing that the firearms had only been put in their location on the morning that police attended. In my view the police record of interview in particular, being a more contemporaneous and detailed record, is to be preferred. It beggars belief that, if he had in fact just removed the firearms from safe storage that morning, Mr Latella would tell police that the firearms had been there for a couple of days or longer when he was aware that the issue he was confronted with was that they were unsafely stored. The fact that Mr Latella has been untruthful in his evidence to the Tribunal does not reflect well upon him.

65. I therefore find that Mr Latella had left three firearms unsecured and unattended in his shop for at least two days. Failing to meet safe storage requirements for firearms as imposed by the Firearms Act is a significant contravention as these provisions are fundamental in their nature and go to the heart of the principles and objectives of the legislation (Bevan v Commissioner of Police [2004] NSWADT 1 at [26]).

66. One of the displayed firearms – the .303 – was Mr Latella’s personal firearm which he had brought to the shop from its safe storage location at his home. The Commissioner stated that Mr Latella has failed to notify a change of safe storage address as required. I draw no adverse inference from the failure to notify as, although there is no firm evidence about when he took the firearm to the shop, he states he did so on 2 May 2018 and he had 14 days from that date to notify the registry of the change of address.

67. It is concerning that at the hearing Mr Latella sought to downplay the seriousness of this issue. He insisted that there was no real risk to the public because of the height at which the firearms were either hung or attached. He acknowledged that some of the ammunition stored on the table could be used in the .303, but again downplayed this by saying, because of its age and mechanism, the rifle was not easy to load. There may be some truth to these statements but Mr Latella fails to acknowledge that strict compliance with his obligations is what is required. I am also concerned by the statement made by Mr Latella during the police interview as set out above which implied that his adherence to the regulatory requirements was a bit lax as he was in Coonabarabran, not Sydney. I don’t accept his alternative explanation of what he meant when he made the statement to police.

68. As was stated by Appeal Panel in Commissioner of Police v Joseph [2016] NSDWCATAP 124, firearms dealers provide the only lawful conduit for the passage of weapons to ordinary members of the community. They must therefore carry out their responsibilities scrupulously and strictly observe the manifold business requirements to which they are subject. The Appeal Panel went on to say at [54]:

In our view, and as reflected in the detail of the firearms law, the public has a high interest in ensuring that firearms dealers licences only be granted to persons in whom trust and confidence can be placed in relation to a range of matters. Those matters include: their business competence, their ability to implement complex standards in relation to such matters as the security of weapons, recordkeeping and reporting to authorities, and their capacity, where necessary, to deal appropriately and confidentially with those authorities, in particular the police.

69. Mr Latella provided several references from people who know him who attested to his good character. I have no doubt that he is generally held in good regard by the local community and in particular those involved in the gun club and other pursuits. There are, however, other considerations involved in determining whether he should hold the firearms dealer licence.

70. I agree with the Commissioner that the conduct of Mr Latella over period of time in failing to comply with the requirements imposed on firearms dealers is serious. Mistakes can be made but the failings were not isolated incidents and in relation to recordkeeping occurred over a significant period of time. Mr Latella acknowledged at the hearing that he knew what his obligations were as a dealer. I accept that he regrets his actions and there may be some force to submissions made on his behalf that having learned his lesson he will not repeat such things in the future. However, that is undermined by his behaviour during the course of these proceedings in giving untruthful evidence and seeking to downplay the seriousness of the incidents which led to the offences under the firearms legislation.

71. There is no doubt that loss of the dealer licence and permit has had an adverse impact on Mr Latella’s livelihood. His individual interest in maintaining the licence and permit however “must be subordinate to the public interest in ensuring public safety”: Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 at [69]. There is considerable public interest in firearms dealers being aware of the regulatory requirements and complying with them.

72. I am satisfied that is not in the public interest for Mr Latella’s firearms dealer licence to be restored at the present time.

73. Mr Latella submits that, even if the decision in relation to his dealer licence is affirmed, he should retain his personal licence. Mr Latella has contravened provisions of the Firearms Act. While these breaches were related to his dealer licence, they indicate a disregard for the strict requirements of the law. He has continued to downplay his actions and does not seem to recognise the serious nature of his non-compliance with the Firearms Act. I cannot be satisfied that in the future Mr Latella will exercise appropriate control of his firearms. In this context I note that the firearm which was suspended from hooks in the ceiling at his shop was in fact a personal firearm which, according to his evidence to the police, he had left there for some days. In those circumstances, it is not in the public interest for Mr Latella to continue to hold a firearms licence at the present time.

74. For these reasons, the correct or preferable decision is to affirm the decision under review.

Order

1. The decision under review 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: 01 September 2020