Legallant v Commissioner of Police, NSW Police Force

[2023] NSWCATAD 47

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Legallant v Commissioner of Police, NSW Police Force [2023] NSWCATAD 47

Hearing dates:

1 December 2022

Date of orders:

03 March 2023

Decision date:

03 March 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

The decision under review is set aside.

Catchwords:

Administrative Law – licensing - firearms – safe storage contravention – firearms stolen – licence revocation – public interest considerations.

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Administrative Decisions Review Act 1997

Firearms Act 1996

Firearms Regulation 2017

Cases Cited:

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

Constantin v Commissioner of Police [2013] NSWADTAP 16

Cusumano v Commissioner of Police [2001] NSWADT 50

Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409

Jameson v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 25

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

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

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

Ward v Commissioner of Police [2000] NSWADT 28

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

Whalan v Commissioner of Police, NSW Police Force [2018] NSWCATAD87

Yaghi v Commissioner of Police, New South Wales Police Service [2001] NSWADT 91

Texts Cited:

None Cited

Category:

Principal judgment

Parties:

Dennis Legallant (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Solicitors:
Hartmann & Associates Solicitors (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2022/204430

Publication restriction:

Nil

Reasons for Decision

Introduction

1. This is an application by Mr Dennis Legallant (“the Applicant”) for review of a decision made by a delegate of the Commissioner of Police (“the Respondent” or “the Commissioner”). The decision under review was to revoke the Category AB firearms licence that the Applicant held under the Firearms Act 1996 (“the Firearms Act”).

Background

2. The background to this matter is not in dispute. The Applicant has held firearms licence since 1998, with a number of subsequent renewals since that date. The most recent licence was issued in December 2020, with an expiry date of December 2025.

3. The Applicant's licence was suspended in December 2020 and revoked in July 2021. The decision to revoke the licence was affirmed on internal review in July 2022. The Respondent formed the view that the Applicant's continued possession of a firearms licence would be against the public interest and the Applicant may not personally exercise continuous and responsible control over the firearms because of his way of living.

4. The Applicant has applied to the Tribunal for external review of the decision to revoke the Applicant's firearms licence.

5. The circumstances giving rise to the revocation concern an incident that occurred in December 2020 (“the December 2020 incident”). The circumstances are summarised in the Respondent’s written submissions. It is not in dispute that:

• three of the Applicant’s firearms were stolen from his motor vehicle, parked at his residence in Roselands;

• a Police event report of 25 December 2020 states that the Applicant phoned Police to report that his firearms had been stolen from his motor vehicle that he had parked within his driveway the previous day.

• The Applicant told police that on Thursday 24 December 2020, after finishing work, he picked up his firearms from his friend's house, placed them in his vehicle and returned home. He then went to Roselands Shopping Centre on foot, leaving the car parked in the driveway of his premises. The Applicant told police that, later in the afternoon, he removed some drinks from the vehicle having closed the driveway gate. He believed that he locked and secured the vehicle.

• When the Applicant first reported the theft of the firearms to Police, he said that he had forgotten about the firearms and began running errands throughout the day. He said that he became busy due to the upcoming Christmas celebrations, and he was in a hurry to get things done.

• The Applicant reported to Police that on the morning of 25 December 2020, he returned to his vehicle remembering he had placed the firearms in the rear foot well of the vehicle. He discovered that his vehicle was unlocked, the front and rear doors were ajar and his three firearms are missing. He then contacted the Police.

• The Applicant subsequently told Police that he had driven to a bottle shop at about 5.30pm on 24 December 2022, with the firearms still inside the vehicle.

• The Applicant told Police that he is still in possession of the bolts for the three firearms and each of the firearms had trigger guards.

• On 17 February 2021, the Applicant was found guilty of the offence ‘Holder of Category A or B licence does not have approved storage’. The Applicant were made subject to a conditional release order for a period of two years which concluded on 16 February 2023.

• There is no suggestion that the Applicant has breached any conditions of his release.

Applicable legislation

6. The general principles are set out in section 3 of the Firearms Act, which 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

…

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

…

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

7. Section 75 of the Firearms Act provides for the review by the Tribunal of a decision to revoke a firearms licence.

8. Section 63 of the Administrative Decisions Review Act 1997 (“the ADR Act”) provides for the approach to be taken by this Tribunal in determining an application for a review of a reviewable decision. Section 63 provides:

63 Determination of administrative review by Tribunal

1. In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

   (a)   any relevant factual material,

   (b)   any applicable written or unwritten law.

2. For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

3. In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

   (a)   to affirm the administratively reviewable decision, or

   (b)   to vary the administratively reviewable decision, or

   (c)   to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

   (d)   to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

   9. The hearing is a hearing "de novo" - meaning that the Tribunal may consider the matter from the start including taking into account fresh evidence brought by either party. The Tribunal is not restricted to the consideration of the material that was before the Respondent 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. There is no presumption that the Respondent’s decision is correct.

   10. Section 24(2) of the Firearms Act provides as follows:

(2) 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.

11. Clause 20 of the Firearms Regulation 2017 provides that “The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold a licence”.

12. The general requirements for safe keeping are set out in section 39(1) of the Firearms Act:

39 General requirement

(1) A person who possesses a firearm must take all reasonable precautions to ensure:

(a) its safe keeping, and

(b) that it is not stolen or lost, and

(c) that it does not come into the possession of a person who is not authorised to possess the firearm. …

13. The Applicant held a category AB licence. The specific requirements for the AB category are laid down in section 40(1) of the Firearms Act:

40 Category A and category B licence requirements

(1) The holder of a category A or category B licence must comply with the following requirements in respect of any firearm to which the licence applies:

(a) when any such firearm is not actually being used or carried, it must be stored in a locked receptacle of a type approved by the Commissioner and that is constructed of hard wood or steel and not easily penetrable,

(b) if such a receptacle weighs less than 150 kilograms when empty, it must be fixed in order to prevent its easy removal,

(c) the locks of such a receptacle must be of solid metal and be of a type approved by the Commissioner,

(d) any ammunition for the firearm must be stored in a locked container of a type approved by the Commissioner and that is kept separate from the receptacle containing any such firearm,

(e) such other requirements relating to security and safe storage as may be prescribed by the regulations….

Issue for determination

14. The Tribunal is to determine whether the correct and preferable decision is to revoke the Applicant’s firearms licence.

15. This determination requires consideration of where it would be contrary to the public interest for the Applicant to continue to hold a licence.

The public interest

16. 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 Commission's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation.

17. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at paragraph [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.”

18. In Cusumano v Commissioner of Police [2001] NSWADT 50 at paragraph [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.”

19. Section 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 paragraphs [27] – [28] Deputy President Hennessy said that in terms of public safety:

“27 …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.

28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.”

20. Ward v Commissioner of Police dealt with the issue of 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 paragraphs [130] – [134].

21. 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 paragraphs [64] – [66].

22. In determining this issue, 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: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at paragraph [32].

Material before the Tribunal

23. The Respondent relies on a bundle of material filed pursuant to section 58 of the ADR Act (“the section 58 documents)”). This material includes a number of records held in the Respondent's electronic database ("COPs") that relate to the December 2020 incident. The Respondent's solicitor, Mr Zoppo also provided written submissions.

24. The Applicant relies on his own evidence. He appeared at the hearing and gave evidence. He has also filed a number of character references that were provided on his behalf. He also relies on correspondence sent to the Firearms Registry in support of the application for internal review. The Applicant's solicitor, Mr Kable also made submissions.

The Respondent's case

25. The Respondent's position is that the correct and preferable decision is to affirm the decision of the Commissioner to revoke the Applicant’s firearms licence.

26. The Respondent submits that the Tribunal must be satisfied that there is virtually no risk to public safety if the Applicant is able to possess and use a firearm and that this is a high standard to meet.

27. The Respondent relies on the Administrative Decisions Tribunal decision in Uzelac -v- Commissioner of Police, Ministry of Police [2003] NSWADT 226 in which Acting President Hennessy set out the principles applying to licence revocations, particularly involving safe storage breaches. At paragraph [19] Acting President Hennessy stated:

19 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:

o   the reason for failing to store the firearm safely;

o   the length of time the firearm was not stored safely;

o   the potential or real danger posed by failure to store the firearm safely;

o   the person's previous conduct in relation to storage of firearms and any related matter;

o   the person's understanding of the importance of safe storage and the likelihood that firearms will not be stored safely in the future; and

o 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].

28. The Respondent made submissions in relation to those considerations.

The reason for failing to store the firearm

29. The Applicant’s explanation as to why he had not stored the firearms correctly was that it was human error. The Respondent submits that it is clear that the Applicant was not concerned with the safe storage of the firearms in his vehicle, to the extent that the firearms were just considered to be like any other item in his vehicle.

The length of time the firearm was not stored safely

30. The Respondent submits that it appears that the firearms were not stored correctly for approximately 24 hours. That is, from sometime in the afternoon on 24 December 2020 to 1.00 pm on 25 December 2020 - the time when the Applicant noticed the firearms were missing from his vehicle.

31. The Respondent further submits that there is no evidence that the Applicant’s vehicle was damaged to obtain entry to it, which would support a suggestion that the thief did not need to break into the vehicle to effect entry and therefore it would appear that it was left unsecured.

The potential or real danger posed by failure to store the firearm safely

32. The Respondent submits that the danger posed by the Applicant leaving his three firearms in his vehicle was high. There were periods of time when the Applicant was not at the premises and/or he had left the vehicle at a public location unattended with the firearms located inside. The Applicant’s property did not have CCTV nor was there an alarm fitted on the vehicle.

33. The Respondent further submits that the danger of leaving firearms in a vehicle is always high. However, in this matter the danger was realised when the firearms were in fact able to be stolen relatively easily.

The person's understanding of the importance of safe storage and the likelihood that firearms will not be stored safely in the future

34. The Respondent noted that when questioned by Police as to what measures he took to ensure the firearms were not stolen, the Applicant replied that the vehicle’s door was supposed to be locked. Further, when Police asked the Applicant if he was aware that whilst not travelling from place to place the firearms are supposed to be put into safe storage, the Applicant replied that he thought a locked vehicle would be safe storage.

35. The Respondent submits that the Applicant has a long history with firearms and holds a role at the shooting club that suggests that he should be aware of the requirement for safe storage. However, on his return home he chose convenience over immediately returning his firearms to the appropriate safe storage facility.

The reason the person has a firearms licence

36. The Respondent noted that the Applicant has a firearms licence for recreational shooting purposes only, not for employment or primary production purposes.

Are the breaches trivial or excusable?

37. The Respondent submits that the Applicant’s breach of the Act could not be held to be trivial or excusable. The lawful safe storage of firearms is a fundamental part of the privilege of holding a firearms licence and is fundamental to the safety of the community.

38. The Respondent further submits that the firearms are still outstanding in the community and therefore there remains a risk to the public. The Respondent noted that in the matter of Whalan v Commissioner of Police, NSW Police Force [2018] NSWCATAD87 at paragraph [54] the Tribunal stated that if firearms remain unaccounted for, this is a significant risk to public safety.

39. The Respondent noted that during the course of the seizure of the Applicant’s firearms by Police on 29 December 2020, the Applicant stated to Police:

“Someone comes onto your property and takes your stuff, then I’m in trouble. Crazy”.

40. The Respondent submits that this comment made by the Applicant, demonstrates that he does not appreciate the serious nature of the breach. By this comment the Applicant seeks to minimise the role he played in not storing the firearms securely, which resulted in the firearms being able to be stolen from his motor vehicle.

41. The Respondent contends that in the circumstances it is not in the public interest for the Applicant to hold a firearms licence.

The Applicant's case

42. The Applicant attended the hearing, gave evidence, and was cross-examined.

43. In his oral evidence at the hearing, the Applicant conceded that he had previously thought that a locked vehicle was sufficient to satisfy the firearms safe storage requirements. He now accepts that his understanding was wrong.

44. In regard to the December 2020 incident, the Applicant did not accept the Respondent’s contention that anyone who looked through the car windows would have been able to see the firearms. He said that the vehicle has tinted windows and that the firearms were covered with a blanket. His evidence was that the vehicle was also locked.

45. He said that he is now aware that his storage was not adequate.

46. In a letter of apology, he wrote:

Please accept this letter as my formal apology for being responsible for the incident which led to my firearms being stolen from my vehicle on the 24^th December 2021.

I am very sorry for this situation occurring and I can only express my deep remorse and regret that this had happen and which has now blemished a previously perfect record.

I have never had any previous transgressions such as which transpired on the night of the 24th of December 2020. The punishment and the personal embarrassment have taught me well and I will never make the same mistake or a similar mistake again.

47. The Applicant also stated that he has taken additional steps to improve the external security of his home by installing CCTV cameras and movement activated security lights. In his oral evidence he stated that the installation was overseen by a friend who is a security guard. He said that this security will provide an ongoing deterrent to any future would be thieves.

48. In his oral evidence he said that he remains very upset that the stolen firearms have not been recovered and remain in the public sphere.

49. He stated that he understands the seriousness of the theft and that he is very remorseful. He does not dispute that he made the comment that it is crazy that he would get into trouble even though someone came onto his property and stole his property. He explained that he was upset at the time.

50. He provided a number of references from individuals who clearly hold him in high regard notwithstanding the breach.

51. The Applicant also provided evidence that he has successfully completed a course in firearms legislation relating to NSW. The course is designed to improve the general knowledge of the firearms laws and covers a firearm licence holders' responsibility as to matters including safe storage, transportation, use/carriage/possession of firearms. The course includes an examination of the issues that gave rise to the cancellation of his licence and the knowledge and measures necessary to prevent any recurrence.

52. Mr Kable referred to the decision in the matter of Jameson v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 25 and submitted that this matter is comparable to that of Jameson. At paragraph [62] the Tribunal stated:

Safe storage contraventions do not, however, automatically lead to licence revocation. In [Bevan v Commissioner of Police, NSW Police Service [2004] NSWADT 1], the tribunal set aside the Commissioner’s decision to revoke. In Yaghi v Commissioner of Police, New South Wales Police Service [2001] NSWADT 91 there was a conviction, not merely a finding of guilt, in respect of a safe storage infringement, which was affirmed on appeal. The tribunal nevertheless allowed the applicant to retain his licence, saying “As the Parliament has not chosen to make mandatory the power to revoke the licence in circumstances such as Mr Yaghi’s, but rather has provided the Commissioner with a discretionary power, it is reasonable to conclude that not all contraventions or breaches warrant the exercise of the power to revoke. There must be something more to be taken into account”: at [32].

53. Mr Kable submitted that the considerations identified in the Uzelac case, as set down in Jameson, mainly turn on good character and the Applicant’s knowledge and understanding of the laws. He argues that in this matter there are extraordinary circumstances that take this matter outside the ordinary case. He submits that on the evidence it can be considered that there is virtually no risk to the public if the Applicant’s firearms licence is restored.

Consideration

54. This is a matter in which the Applicant's contravention was a serious one. As a consequence of the breach of the safe storage requirements there are now firearms which remain unaccounted for, and this poses an ongoing risk to public safety.

55. However, there are significant considerations which are in the Applicant’s favour.

56. Mr Kable has referred me to the decision in Jameson. In that matter, the applicant placed a number of pistols in the boot of his vehicle the night before he was to go shooting and the pistols were subsequently stolen. The Tribunal set aside the decision to revoke the applicant’s firearms licence. At paragraph [76] of Jameson the Tribunal noted:

While the applicant's contravention was a serious one, I find that he has shown persuasive and relevant circumstances that take his matter outside the ordinary case. They include:

• his unblemished prior record in relation to firearms and the general law;

• his high reputation and standing in the community and in pistol shooting circles;

• his security precautions before the offence exceeding those required by law;

• his contacting the police immediately on becoming aware of the theft, accepting full responsibility and assisting the police by supplying his CCTV footage enabling the wrongdoer's apprehension and recovery of three of the guns;

• his acute remorse and contrition over the event, attested to by all witnesses, together with the sobering experience of being deprived of his licence and unable to engage in his favourite sport for over a year, which will have reinforced the lessons involved;

• his upgrading of the already strong security precautions at his house; and

• the psychological evidence concluding that in the future he is likely to be hyper-vigilant and obsessive over firearm security precautions and is highly unlikely to reoffend. He suffers from no mental disorder and functions fully appropriately in normal society.

I therefore find that there is virtually no risk that Mr Jameson will in the future fail to follow prescribed safe storage or other safety requirements and that it is not contrary to the public interest for him to hold a category ABH firearms licence.

57. Most of the considerations identified in Jameson are equally applicable to this matter. The Applicant’s conduct in immediately contacting the police, accepting full responsibility, and assisting them, and the strength of his evidence and those supporting him is comparable to the circumstances in Jameson.

58. It is common ground that in determining this matter it is necessary for me to consider the risk to the public should the Applicant have access to firearms. On the evidence before me in regard to the Applicant’s conduct prior to the December 2020 incident and his conduct since that incident, I am satisfied that his breach was out of character. He is extremely remorseful; he has upgraded the security precautions at his house; and he has undertaken an education program to increase his understanding of his obligations as a licence holder. In my view, it is highly unlikely that the Applicant would again breach his obligations in regard to the storage of firearms.

59. Based on all the evidence, I have confidence that the Applicant would pose virtually no risk to public safety if he had access to firearms.

60. It follows that the Respondent’s decision to revoke his firearms licence should be set aside. The effect of that decision is to restore the Applicant’s licence.

Order

The decision under review is set aside.

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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: 03 March 2023