Londero v Commissioner of Police, New South Wales Police Service

[2002] NSWADT 213

CITATION:	Londero & Anor v Commissioner of Police, New South Wales Police Service [2002] NSWADT 213
DIVISION:	General Division
PARTIES:	APPLICANTS Enore Londero and Mark Londero RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	013178, 013179
HEARING DATES:	24/10/01
SUBMISSIONS CLOSED:	10/25/2001
DATE OF DECISION:	10/25/2001
BEFORE:	Higgins S - Judicial Member
APPLICATION:	Firearms Act - firearms licence - revocation of licence or permit - Firearms licence - revocation of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Firearms (General) Regulation 1997 Firearms Act 1996
CASES CITED:	Australian Broadcasting Tribunal v Bond 19990 94 ALR 11
REPRESENTATION:	APPLICANT P Collins, solicitor RESPONDENT C Capper, solicitor
ORDERS:	1 The Commissioner's decision to revoke Enore Londero's category 'A' firearms licence is affirmed; 2 The Commissioner's decision to revoke Mark Londero's minor's firearm training permit is set aside and in substitution the decision is made not to revoke Mark Londero's firearm training permit.

Enore Londero’s application

1 I will firstly deal with Enore Londero’s application. These proceedings relate to a decision made by the Commissioner of Police, (“the Commissioner”), to revoke a category A firearms licence in the name of Enore Londero. That licence was issued on 11 September 1998 and was due to expire some time subsequent thereto. The basis for the Commissioner’s revocation of Enore Londero’s firearms licence was a finding of guilt, by the Local Court in Cooma, on 8 November 2000, of two charges under the Firearms Act 1996. The charges related to Enore Londero possessing an unregistered firearm and not keeping a firearm safely. While the Court made a finding of guilt, it did not record a conviction pursuant to s 10 of the Crimes Sentencing Act. Mr Londero’s application was heard together with that of his son Mark Londero who had sought review of the Commissioner’s decision to revoke his Minors Firearms Training Permit.

The Legislation

2 The Firearms Act 1996, (“the Act”), sets up a scheme for licensing people to possess and use firearms. Included in this scheme are provisions which allow the Commissioner to revoke a licence that has previously been issued. These provisions are contained in s 24(2) of the Act and in this case the relevant provisions are s 24(2)(b)(ii)(iii) and s 24(2)(c).

3 Section 24(2)(b)(ii) of the Act provides that a licence may be revoked if the licensee contravenes any provision of the Act or the regulations whether or not the licensee has been convicted of an offence for a contravention.

4 The findings of guilt by the Cooma Local Court that Enore Londero failed to keep his firearms safely and possessing an unregistered firearm provides a basis on which the Commission may revoke Mr Londero’s licence.

5 Section 24(2)(b)(iii) of the Act provides that a licence may be revoked if the licensee contravenes any condition of the licence.

6 Section 19(2)(a) of the Act provides that a firearms licence is subject to a condition that the licensee must comply with the relevant safekeeping and storage requirements under the Act. The safekeeping and storage requirements for a category A licence are set out in s 40 of the Act. This section provides that, subject to the licensee satisfying the Commissioner that the licensee has provided alternative arrangements for the storage of firearms that are of a standard not less than the requirements set out in the section, the licensee must comply with the following requirements:

“(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 lock 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 the 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. A failure to comply with such conditions constitutes an offence.”

7 The remaining provision is s 24 (2)(c) of the Act, which provides that the Commissioner may revoke a licence if he is of the opinion that the licensee is no longer a “fit and proper person” to hold a licence.

Documentary evidence

8 Ms Collins, who appeared with leave on behalf of Mr Londero relied on the documents attached to Mr Londero’s application in these proceedings. This included a letter from the principal of Monaro High School, who explained the circumstances in which Mr Londero came to possess the unregistered firearm, an air rifle, in mid 1997. In this letter the principal states that he found the rifle in the school strongroom and that he gave it to Mark Londero as he knew he was a successful shooter.

9 Ms Collins also tendered into evidence, without objection, an undated reference from Noel Barrett and Graeme Crundwell from the Cooma Rifle Club, which was prepared for the Court hearing. She also tendered two photos of the room where Mr Londero stored his firearms until his licence was revoked.

10 Mr Capper, who appeared on behalf of the Commissioner, relied on the material contained in the Commissioner’s brief of evidence filed on 3 August 2001. Contained in this brief of evidence was a police narrative dated 23 June 2000, which states that they attended Mr Londero’s home on that day. Mr Londero accompanied the police to his home as they sought to inspect his firearms. Mr Londero showed the police to his cellar where he regularly stored his firearms. They were laying against a wall, which the police informed him was not secure. There were two firearms missing from this area and Mr Londero, at the request of the police, took the police officers to his son’s room where they found an air rifle in a wooden box and a 22 calibre sterling rifle.

Oral evidence.

11 Mark Londero and Enore Londero both gave oral evidence. Mark Londero explained that within the cellar of his father’s house there was a small room to the right of the doorway and after the window of that room. This room was built of concrete blocks and had an entry without a door until recently. His father had now installed a steel door with padlocks at the top and bottom of the door and a lock in the handle of the door. Mark Londero stated that the firearms were always stored in this small room with a rug over them. They were not visible from the window or the door to the storeroom. He also stated that the bolts belonging to the firearms were always stored in another place in the house. He stated that he had the firearms in his room because his trainer had told him to practise standing up against the wall of his room with his rifle held up so that the rifle was in a particular position on the wall. He also stated that the bolts to these firearms were stored separately.

12 Enore Londero stated that he was aware of the need for keeping firearms safely. He was aware of the need to keep them in a safe, but this he could not afford at the time and believed the cellar, which was usually locked, and the fact that the bolts of the firearms were removed and stored elsewhere meant, that they were safely stored. He also stated that the air rifle his son had been given by the principal of his school did not function and that he had returned it to the police after the Local Court hearings in Cooma had returned the firearm to him.

Findings of Fact.

13 I found Enore and Mark Londero to be truthful witnesses and accept their evidence. They are both of good character and cooperated in all respects with the police officers. This is a fact that is not in dispute. There is also no dispute that Enore Londero failed to keep his firearms safely and that he possessed an unregistered firearm in contravention of the Act. He pleaded guilty and I accept that he now appreciates there is a need to keep his firearms more safely than he did. In this regard he has now sought to secure the storeroom in his cellar. However, he does not have the Commissioner’s approval that the room complies with the requirements under the Act.

The Applicant’s submission.

14 Ms Collins submitted that the breaches by Mr Londero were not serious, that he had at all times cooperated with the police, and while the firearms were not stored in a safe as required by the Act they were secure and any deficiency that existed had now been rectified.

15 Mr Capper placed greatest reliance on Mr Londero’s failure to keep his firearms safe. He submitted that this was a fundamental breach of the Act and having regard to its overall objectives, including private interests being outweighed by the public interest of public safety.

Reasons and Decision

16 In 1996 the Government enacted new gun laws and one of the underlying principles of that law is to improve public safety by improving strict controls of the possession and use of firearms and by promoting the safe and responsible storage and use of firearms (s 3(1)(b) of the Act). Section, 19(2)(a) and 40 of the Act provide express requirements as to how that objective is to be met in regard to safe storage. That is, a condition of the licence is that the firearms are to be stored safely in the manner prescribed. In my opinion, these are fundamental requirements and notwithstanding the steps taken by Mr Londero to secure his firearms they fell far short of what was required.

17 In particular I am of the opinion that his supervision of his son’s storage of the firearms was far from adequate. I accept that his son is trustworthy, but this does not detract from the need of the firearms being kept safely and his responsibility in this regard. In this case they were clearly not kept safely and also he failed to ensure that his son kept them safely. On that basis, in my opinion the Commissioner made the correct and preferable decision in revoking Mr Londero’s firearms licence on the grounds provided in s 24(2)(b)(ii) and (iii) of the Act. Having formed this view it is unnecessary for me to consider any of the other grounds on which the Commissioner relied.

18 I therefore make the order that the Commissioner’s decision to revoke Category A Firearms Licence in the name of Enore Londero is affirmed.

Mark Londero’s application

19 These proceedings relate to a decision made by the Commissioner of Police, (“the Commissioner”), to revoke the minor’s firearm training permit issued to Mark Londero on 11 September 1998. This permit, if restored, would have expired on 9 May 2001 as this is the date on which Mark Londero turned 18. This is the age at which such a permit automatically expires.

20 The basis on which the Commissioner revoked Mark Londero’s licence was the finding of guilt, by the Local Court in Cooma on 8 November 2000, of a charge of not keeping a firearm safely in contravention of the Firearms Act. Although the Court found Mark Londero guilty of the offence charged the Court did not record a conviction pursuant to s 10 of the Crimes Sentencing Act. The hearing of Mark Londero’s appeal was heard together with the appeal of Enore Londero, his father, in respect of the Commissioner’s decision to revoke his category A Firearms Licence.

Legislation

21 The Firearms Act 1996 (“the Act”) sets up a scheme for licensing people to possess and use firearms and for issuing permits to authorise persons to acquire firearms and other purposes. One such purpose is to authorise the possession or use of firearms by minors in accordance with s 32 of the Act. Section 30(4) of the Act provides that the Commissioner may suspend or revoke a permit, (a) for any reason for which a licence may be suspended or revoked under the Act, or, (b) for such other reasons prescribed by the regulations.

22 I have already set out the relevant provisions of the Act so far as they relate to the revocation of a license in my earlier oral reasons for decision in Enore Londero v The Commissioner of Police. However, these provisions have a different application in respect of the permit issued to Mark Londero in that Mr Capper informed the Tribunal that the Commissioner had not placed any conditions on Mark Londero’s permit in respect of safekeeping of firearms. (See s 30(3) of the Act and Regulation 22 of the Firearms (General) Regulations, which make provision for such conditions to be placed on such permits). That is, s 24(2)(b)(iii) of the Act has no application in this case. Accordingly the relevant grounds for revocation insofar as they relate to this application are s 24(2)(b)(ii)(contravention of the Act) and s 24(2)(c)(fit and proper person) of the Act.

23 In respect of s 30(4)(b) of the Act, clause 18,(1) of the Firearms (General) Regulations provides that a permit may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is issued to continue to hold it.

Documentary Evidence.

24 Ms Collins, who also appeared with leave on behalf of Mark Londero, relied on the documentation attached to Mark Londero’s application to the Tribunal, she also tendered into evidence the references from the following persons:

· G De Groen, who is a coaching director of ARAA.

· David McPhee, Mark’s employer, of Ravensworth Partnership.

· Grahame Crundwell, secretary of the Cooma Rifle Club.

· Gregory Batten, also of the Cooma Rifle Club.

25 Ms Collins also had available for inspection a selection of shooting competition trophies won by Mark Londero and the case in which one of the rifles, found in his room on 23 June 2000 was located and in respect of which he was charged.

26 Mr Capper, who appeared on behalf of the Commissioner, relied on the material contained in the Commissioner’s brief of evidence and filed with the Tribunal on 3 August 2001. In this brief of evidence there was a police narrative concerning two incidents. The first incident occurred on 10 December 1999 when the police stopped a vehicle in which Mark Londero was travelling, where they found in the boot of the vehicle some firearms, which they confiscated. They warned Mark Londero that his permit only permitted him to possess firearms in the company of persons licensed to possess firearms, and on that occasion Mark Londero was not with a person who had such a licence. At the time Mark’s parents were contacted and the firearms were subsequently returned to them.

27 The other incident relates to the events of 23 June 2000 when the police accompanied Mark’s father to his home and they found two firearms in Mark’s bedroom. Again it was in respect of these firearms that Mark was subsequently charged and to which he pleaded guilty.

Oral Evidence

28 Mark Londero gave oral evidence. In giving this evidence he explained that in respect of the first instant he was with friends from Sydney. They had decided to go out and do some spotlight shooting with another friend who lived in Cooma and who was licensed to possess and use firearms. At the time the police stopped him and his friends, his friend who held a firearm licence was not with them, but had been with them and was not far away. He stated that he had otherwise always been in the company of a person licensed to possess a firearm when he used or possessed a firearm.

29 In respect of the second incident, Mark Londero stated that a day prior to the police visiting his home he had gone out with his friends to test a new spotlight he had purchased, they did not take any firearms with them that night, he left the spotlight in his friend’s car. He met his friend the following day and the friend advised him that the police had stopped them and asked who owned the spotlight. They had told the police it belonged to Mark Londero and the police had said to them they wanted to speak to him. On hearing this Mark Londero went to the police station and it was as a result of this visit that they called Mark’s father, who also attended the police station, and then went back to their home with the police to inspect the premises for the firearms.

30 In respect of the firearms found in his room, Mark stated that he had the firearms in his room because his trainer had told him to practise standing up against the wall of his room with his rifle held up so that the rifle was in a particular position on the wall. He also stated that the bolts to these firearms were stored separately.

31 He stated that he had been competing for many years and hoped to be in the Olympics one day. He had been in about 40 competitions and had been told that he had good skills in this particular sport. He stated he received the requisite training before he was issued with a permit and that he had not been told about the safekeeping of firearms as prescribed in the Act. However, he was now well aware of them.

32 Enore Londero also gave evidence, the details of which I have set out in my earlier oral reasons for decisions in the matter of Enore Londero and the Commissioner of Police.

Findings of Fact

33 I found Enore and Mark Londero to be truthful witnesses and accept their evidence. They are both of good character and cooperated in all respects with the police. There is no dispute that the firearms found by the police in Mark Londero’s room on 23 June 2000 failed to comply with the requisite safekeeping requirements under the Act.

Applicant’s Submission

34 Ms Collins submitted that the breach by Mark Londero was not serious and that the 1999 warning given by police was not fully understood by him. In my opinion the latter is not supported by the evidence, which is to the effect that Mark Londero did understand the warning in that he always made sure he was being correctly supervised when using or possessing a firearm.

Respondent’s Submissions

35 Mr Capper submitted that the Commissioner’s decision was the correct and proper decision having regard to Mark Londero’s failure to comply with the 1999 warning and the finding of guilt in respect of a breach of the Act. He emphasised the objectives of the Act, in particular the overriding need to ensure public safety (s 3(1)(a) of the Act). He submitted that in this case it was not in the “public interest” for Mark Londero to continue to hold his permit (see clause 18(1) of the Firearms (General) Regulations) or that he is not a “fit or proper person” to continue to hold the permit pursuant to s 24(2)(c) of the Act. That is, Mark Londero’s conduct was such that public safety could no longer be guaranteed if his permit was to continue.

Reasons and Decision

36 I have made reference to the underlying principles and objectives of the newly enacted 1996 Gun Law in my earlier oral reasons for decision in Enore Londero v Commissioner of Police. These equally apply in this case.

37 There is no question that a fundamental requirement of the new Act is that firearms be kept safely as prescribed. However, the person primarily responsible for this safekeeping is the licence holder, in this case Mark’s father, Enore Londero. In my opinion it was his failure to meet the conditions of his licence that resulted in Mark’s unlawful conduct. Had he kept them as required they would not have been under the bed.

38 While Mark stated that he was not previously aware of the need for licensees to keep firearms safely as prescribed under the Act, in my opinion through his competition experience he must have been aware of some of these. However, in this case I am of the view his breach should not be regarded in the same light as those of his father. Accordingly, I am of the opinion that the Commissioner’s decision in respect of revoking Mark Londero’s permit on the grounds of s 24(2)(b)(ii) is not the correct and preferable decision.

39 This leaves s 24(2)(c) of the Act and Clause 18 of the Firearms (General) Regulations. In my opinion, having regard to the decision in Australian Broadcasting Tribunal v Bond 1990 94 ALR 11 at p 55, which has been accepted by the Tribunal as the statement of principle to be followed for determining whether a person is a fit and proper person, the circumstances of Mark Londero’s breach and the earlier police warnings, do not form a basis to revoke his permit on the grounds of him not being a fit and proper person.

40 Finally, in my opinion it is unnecessary for me to consider the final grounds of whether it is not in the public interest for Mark Londero to continue to hold his permit, because he has now reached the age of eighteen and his permit is therefore automatically terminated.

41 Accordingly I order the Commissioner’s decision to revoke Mark Londero’s permit be set aside and in substitution the decision is made not to revoke Mark Londero’s minor’s firearm training permit.