Lynch v Commissioner of Police (GD)

[2006] NSWADTAP 43

Appeal Panel - Internal

CITATION:	Lynch v Commissioner of Police, New South Wales Police (GD) [2006] NSWADTAP 43
PARTIES:	APPELLANT: Kerry Keith Lynch RESPONDENT: Commissioner of Police, New South Wales Police
FILE NUMBER:	069015
HEARING DATES:	19/07/2006
SUBMISSIONS CLOSED:	07/19/2006
DATE OF DECISION:	09/01/2006
BEFORE:	O'Connor K - DCJ (President); Molony P - Judicial Member; Antonios Z - Non Judicial Member
CATCHWORDS:	fail to apply principle correctly to the facts - opportunity to be heard
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	053364
DATE OF DECISION UNDER APPEAL:	03/20/2006
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Crimes (Sentencing Procedure) Act 1999 Firearms (General) Regulation 1997 Firearms Act 1996
CASES CITED:	Lynch v Commissioner of Police, New South Wales Police [2006] NSWADT 80 Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456 Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 Ward v Commissioner of Police [2000] NSWADT 28 Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75
REPRESENTATION:	APPELLANT C Jackson, barrister RESPONDENT W Pisani, agent
ORDERS:	Appeal dismissed

REASONS FOR DECISION

1 This is an appeal against the Tribunal’s decision affirming the revocation of a firearms licence issued under the Firearms Act 1996 (Firearms Act). The appellant, Mr Lynch is aged 62 years, and has used firearms for 50 years. He had, until the matters that have given rise to the revocation, an unblemished firearms and criminal history record.

2 He lives on a working 100 acre property which runs beef cattle. He has two other farming properties. He has other business interests. Since his childhood he has used firearms for hunting (rabbits, wild pigs) and in more recent years for pest eradication on his properties (foxes). He has been involved in assisting local authorities in conducting baiting programs.

3 Mr Lynch was found guilty on 4 May 2005 at the Nowra Local Court of several contraventions of the Firearms Act. The Court decided not to record a conviction, and instead placed Mr Lynch on a bond to be of good behaviour for two years as permitted by s 10(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (the Crimes (Sentencing Procedure) Act). This was followed in June 2005 by a decision of the Commissioner’s delegate to revoke the applicant’s category AB firearms licence.

4 On 16 August 2005 Mr Lynch’s appeal to the District Court was successful to the extent that the good behaviour bond was set aside. The District Court found him guilty of the offences, but dismissed the charges in exercise of the discretion given by s 10(1)(a) of the Crimes (Sentencing Procedure) Act.

5 Another delegate of the Commissioner then proceeded to deal with Mr Lynch’s application for internal review of the decision to revoke his licence, and by decision dated 18 October 2005 affirmed it. The decision relied on two alternative powers:

(i) The power given by s 24(2)(b)(ii) providing that a licence ‘may be revoked’ if the licensee ‘contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention’.

(ii) The power given by cl 17 of the Firearms (General) Regulation 1997 (made pursuant to s 24(2)(d)) providing that a licence 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’.

6 Mr Lynch then applied for review of the determination by the Tribunal, and was unsuccessful: Lynch v Commissioner of Police, New South Wales Police [2006] NSWADT 80 (20 March 2006). He now appeals to the Appeal Panel.

7 An appeal may be made on a question of law and, with the leave of the Appeal Panel, may be extended to the merits: Administrative Decisions Tribunal Act 1997 (ADT Act), s 113. The Appeal Panel’s discretion to extend to the merits is not fettered by any need to demonstrate an error of law or an arguable error of law: Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456. Mr Lynch’s appeal contains grounds going to questions of law and the merits.

Grounds of Appeal
8 Two questions of law were identified by the appeal. First, denial of natural justice, the claim being that the Tribunal made observations said to relate to Mr Lynch’s understanding of the reasoning behind the registration and storage requirements and similar matters, without having given him an opportunity to respond. Secondly, whether the Tribunal asked the wrong question and placed an impermissible gloss on the test or failed to apply the test in cl 17 of the Regulations (the ‘not in the public interest’ test).

9 In support of the application for leave to extend to the merits, the notice of appeal referred to the positive statements in the Police and Tribunal reasons as to Mr Lynch’s good character, to the preparedness of the Local Court and District Court to make orders which did not give rise to confiscation of Mr Lynch’s weapons; the non-examination by the Tribunal of Mr Lynch’s understanding of the reasoning behind the regulations (really a repeat of the second question of law ground); and his need for firearms as a primary producer.

10 In the latter regard, Mr Lynch placed before us an affidavit containing evidence concerning steps he had taken since the handing down of the Tribunal’s decision to improve his knowledge and appreciation of firearms safety. Mr Pisani, who appeared for the Commissioner, formally objected to the appeal being extended to the merits, but did not oppose, were it extended to the merits, consideration being given to this new evidence.

11 It is, we think, appropriate to refer to the evidence contained in the affidavit at this point of our reasons. This is not a case where evidence that could have been advanced to the Tribunal is now sought to be put in on appeal. The evidence may reasonably bear on the question of whether leave to extend to the merits should be granted. It is clear law that the review tribunal when making an administrative decision should have regard to the material then before it, including any relevant factual material (ADT Act, s 63(1); see generally, Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77; and Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 per Bowen CJ and Deane J at 589.

12 The new evidence has its context the following concluding remarks of the Tribunal:

‘35 … the licence should not be returned. It follows, in my view, that the Commissioner’s determination to revoke Mr Lynch’s licence is the correct and preferable one and therefore it should stand. However, I recommend that if Mr Lynch reapplies for a licence and is able to satisfy the Commissioner that he has acquired sufficient understanding and appreciation of the importance of safe storage, the Commissioner should take into account my view that I consider that there are no other factors that should prevent him from being granted the licence.’
13 Mr Lynch’s affidavit has two components. One part gives his response to criticisms in the Tribunal decision which he feels are misplaced in relation to his understanding of safe storage issues especially in the case of dismantled, non-operational firearms. The other part deals with the measures he has taken to improve his understanding. He states that he has downloaded the entire Act and Regulations and has undertaken an official firearms safety course, and attaches the Certificate of Firearms Safety Awareness issued to him pursuant to the Regulations, and dated 12 April 2006.

14 At the appeal hearing, Mr Jackson of counsel reiterated many of the matters that had been put unsuccessfully below. In summing up his client’s case for restoration of the licence, Mr Jackson said:

(i) that Mr Lynch is a man of exceptional character

(ii) that he would not offend again in the ways that had given rise to the action against his licence (in particular being found guilty of various offences to do with safe keeping of firearms)

(iii) that this Tribunal should not be preoccupied with general deterrence or setting a precedent in dealing with a case of the present kind

(iv) that the Tribunal below had given some acknowledgement in its reasons to considerations favourable to Mr Lynch, and Mr Lynch had completed the course that the Tribunal had seen it as desirable for him to undertaken

(v) that it was wrong for the Tribunal to see itself as propagating correct standards – that was the role of the court in criminal proceedings

(vi) the Tribunal is acting as an administrative body making a decision in a particular case about a particular person

(vii) that Mr Lynch now acknowledged that community attitudes had changed, and it was not appropriate for guns to be kept in the house in the way he had, and he accepted that it had taken the findings made against him to bring about change

(viii) in any case, who reads decisions of the Tribunal.

15 These submissions seek to have a ‘one-off’ individualised decision made in favour of Mr Lynch. They play down the importance of administrators being seen to deal with similar cases consistently. As we have noted, there is now one new factor as compared to the previous position – completion of the safety awareness course by Mr Lynch.
The Offences
16 The main difficulty that stands in the way of the return of the licence is the objective seriousness of the matters that led to the revocation of his licence.

17 The police were called on 5 April 2005 to his residence to serve an interim apprehended violence order on his wife arising from an incident that had taken place between his wife and their daughter-in-law, circumstances in which – we should emphasise – Mr Lynch was not implicated. The police, in accordance with usual procedures in these situations, undertook a search for weapons. Consistently with the police facts sheet (also in evidence), the officer responsible for the internal review (the reviewer) described the events of that night as follows (various serial numbers omitted):

‘After initially refusing Police entry to the premises, you showed them to your firearms safe in which three firearms were correctly stored. You then led Police to the master bedroom where they found under the bed a loaded single barrel .410 calibre shotgun … and a loaded 12 gauge shotgun … . I place significant weight upon the fact that both firearms were unsecured and loaded. I also assign weight to the fact that the .410 shotgun was unregistered.

Police then located under the curtain in the bedroom a loaded Sako .22/250 calibre rifle with a scope ( … - registered), together with an ammunition belt with 21 rounds of 12 gauge ammunition. In the master bedroom’s walk-in wardrobe there was a further Winchester .22 calibre rifle …. Although this firearm was unloaded, it was also unregistered. Also found on a shelf in the wardrobe was a large amount of 12 gauge and .22 calibre ammunition.

You then led Police outside to an unsecured shed where you surrendered a loaded BRNO .22 calibre rifle ( … - registered) and a number of boxes of unsecured .22 calibre ammunition next to the rifle. Also in the shed was an unregistered double barrel shotgun in pieces … . I acknowledge that you immediately admitted your guilt for safekeeping breaches.’

18 At the Local Court the following offences were found proven: three offences of possess unregistered firearm, six offences of not keep firearm safely and one of not having approved storage as a holder of a Category AB firearms licence. As already noted, on appeal the District Court set aside the non-conviction bond, and instead exercised the special discretion given by the Crimes (Sentencing Procedure) Act to dismiss the charges, though proven, under s 10(1). If a Court decides to take that step it must apply s 10(3), which provides:
‘(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors:

(a) the person’s character, antecedents, age, health and mental condition,

(b) the trivial nature of the offence,

(c) the extenuating circumstances in which the offence was committed,

(d) any other matter that the court thinks proper to consider.’

19 In the course of his remarks, the District Court judge (His Honour Judge Garling), echoing some of the submissions made in this case, observed that this was one of those cases ‘where general deterrence does not play as large a part as it would in other cases because the community could readily understand that a man of his character should be dealt with in a more lenient way than others in the community’.

20 The final remarks of the judge indicate that he was concerned over the effect of the Magistrate’s order on Mr Lynch’s firearms licence and on his ability to get back his weapons, including the unregistered ones. His Honour went on to say (transcript 16 August 2005):

‘HIS HONOUR: … [I]f a person is subject to a bond, then they are disqualified from holding a licence. Is that accurate?

SPAIN (counsel for Mr Lynch): No, they’re not in a position to apply for a licence.

HIS HONOUR: They cannot apply for a licence. And so, what is argued, in effect, is that the learned magistrate directs the firearms be returned, the police decline, for whatever reason, to return them and, whilst he is subject to the bond, he cannot apply for a licence and that that was not really the intent of the magistrate at the time and, therefore, the bond should simply be removed as he, I would think, is unlikely to offend again in this way. I do not have any problem, I must say, in removing the bond. I believe the magistrate’s decision at the time was correct but had he known what I know, perhaps he would not have proceeded with the bond either. So the appeal is dismissed. The orders of the magistrate are confirmed, with this exception, the bond to be of good behaviour is removed. I quash his orders. I find the offence proven but without proceeding to a conviction. I dismiss the charges under the provisions of section 10 of the Crimes (Sentencing Procedure) Act 1999. … All registered firearms may be returned or delivered to the licensed holder of the firearm’s licence.’

Tribunal’s Reasons
21 The Tribunal referred to the following matters:
(a) the public safety considerations, especially in the environment of the family home, which had led to the enactment of strict firearms storage requirements

(b) the extent of the breaches of the law found in this case

(c) the degree of ignorance displayed by Mr Lynch in relation to his knowledge of the relevant requirements

(d) the opportunity that Mr Lynch had to regularise his situation so far as unregistered weapons were concerned through the well publicised amnesties that occurred between June and November 2001, and for the 12 month period commencing October 2003 and ending September 2004

(e) the extent of the testimonials to Mr Lynch’s good character from 47 people from ‘various walks of life ranging from teachers and politicians to local business people and friends of long standing’ (at [15] of Tribunal’s reasons)

(f) his sense of shame, and his commitment to never reoffending again

(g) his practical needs for firearms.

22 The Tribunal then said at [24]-[25]:
‘24 These are difficult proceedings in that they involve an individual who is without doubt a highly valued member of his community but who has chosen to ignore what he knew to be the registration and safe storage requirements under the Act. I believe that the testimonials paint an accurate picture of Mr Lynch’s character.

25 I also accept that Mr Lynch was aware of the need to register his firearms and had in fact registered some of them. The evidence establishes that he has a firearm safe, with a keypad locking system, and an ammunition cabinet. These have been inspected and approved for the purpose. This suggests he was aware of the safe storage requirements.’

23 The Tribunal saw the question ultimately, drawing on the approach taken by Hennessy DP in Ward v Commissioner of Police [2000] NSWADT 28 at [27]-[28], as being whether the decision-maker can ‘have have confidence that [the applicant] would not pose a risk to public safety if he had access to firearms’.

24 The Tribunal continued:

‘27 Although there was unquestionably a risk to public safety through Mr Lynch’s actions, that risk did not materialise. Fortunately, the weapons did not fall into the hands of criminals nor did unauthorised persons use them. The police seized them. I need to determine the degree of risk to public safety if Mr Lynch’s licence were reinstated.

28 Many factors need to be weighed in forming a view as to the risk to the public. The authorities to which I have been referred set out some of those factors however each case will inevitably raise its own peculiar issues for consideration.

29 I have no concerns about Mr Lynch’s character or his commitment to comply with the law in future. However, in the circumstances of this matter I have concerns with respect to Mr Lynch’s understanding of the obligations imposed on the holder of a firearms licence.’

25 The Tribunal then referred to various cases that have come before the Tribunal where horrific events were occasioned to some degree by failure to observe safe storage requirements (for example, intruders using unsecured weapons in the kidnapping of two daughters from the family home; youth suicide in the family home involving use of an unsecured weapon).

26 In the end the Tribunal saw as critical one factor, the question of whether it could be said that he posed virtually no risk to public safety. In that regard the Tribunal expressed the view that, as at the time of its deliberations, Mr Lynch lacked an lacked an understanding of the reasoning behind the registration and storage requirements.

27 The Tribunal concluded:

‘33 Mr Lynch indicated that one of the unregistered, unsecured firearms in issue was a double barrel 12 gauge shotgun, that was not only in pieces but also had pieces missing. He also indicated that he had not been aware that the rifle is still a firearm whether it is in pieces or not, but simply accept that it is the case. In my view this suggests a lack of understanding of the reasoning behind the registration and storage requirements. The risk to the public is not removed simply because a firearm is not operational. Such a firearm can still be used in a hold-up or to threaten someone. A person not familiar with firearms might not make the differentiation between an operational firearm and one that had pieces missing if the firearm was pointed at them. They might reasonably believe that the rifle could cause them damage. There can be no doubt that it could give rise to an apprehension or fear of harm. The storage requirements are strict as non-compliance can easily compromise safety.

34 In my view, it cannot be said that there is ‘virtually no risk’ to public safety so long as Mr Lynch lacks an understanding of the reasoning behind the registration and storage requirements. While I agree that Mr Lynch is "unlikely to offend again in this way", my concern is to try to ensure that he does not offend in other ways because of this. However, these concerns can be overcome. In Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75 I stated:

“25 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. In the circumstances I am not satisfied that Mr Wiltshire has sufficient understanding and appreciation of the importance of safe storage. That being the case I could not be confident that his firearms will be stored safely in the future. Mr Wiltshire could take steps to overcome his present lack of understanding of the statutory obligations. At this time however, it is my view that more would be required before the public could be comfortable with Mr Wiltshire again holding a firearms licence. At the bare minimum this would require that Mr Wiltshire completed, to the satisfaction of the Commissioner, firearms training and safety courses relevant to the licence that he seeks.”
35 I hold the same view in relation to Mr Lynch. That being the case, the licence should not be returned. It follows, in my view, that the Commissioner’s determination to revoke Mr Lynch’s licence is the correct and preferable one and therefore it should stand. However, I recommend that if Mr Lynch reapplies for a licence and is able to satisfy the Commissioner that he has acquired sufficient understanding and appreciation of the importance of safe storage, the Commissioner should take into account my view that I consider that there are no other factors that should prevent him from being granted the licence.’

Assessment
28 Grounds of Law Appeal: Point One . The first point of appeal was that the Tribunal failed to accord procedural fairness by not giving Mr Lynch an opportunity to be heard before concluding that he ‘lacks an understanding of the reasoning behind the registration and storage’ requirements and that ‘he would therefore ‘offend in other ways’’. These passages appear in [34] and [35] of the reasons. Mr Lynch’s affidavit filed in these proceedings, as noted already, includes a part which is in effect a reply to these comments.

29 We do not think that Mr Lynch was denied procedural fairness before these conclusions were reached. Clearly these were material matters in the proceedings. The issues had been raised at both levels before the Commissioner. For example the reviewer, when considering the ‘not in the public interest’ ground (cl 17), expressed concern over the justification by Mr Lynch for having loaded weapons in and around his bedroom. The reasons noted that Mr Lynch’s explanation at Court that he had kept a loaded shotgun in the bedroom since an incident in 2003 when he was threatened by a group of men regarding a business transaction. The reasons also noted that testimonials had referred to a belief held by Mr Lynch that his life was in danger, and that he was concerned over being in an isolated situation, and that he had past trouble with a person who had served time for attempted murder.

30 The reasons go on to explain that one of the points made by the Australian Police Ministers Council in its resolutions following the firearms summit of 1996 (following the Port Arthur massacre) was that ‘personal protection was not to be regarded as a genuine reason for owning, possessing or using a firearm’ (Resolution 3, see further Hansard, Legislative Council, 25 June 1996, 3560).

31 In concluding his reasons the reviewer also expressed concern, given Mr Lynch’s ‘extensive history of involvement with firearms’ that he did not have a comprehensive understanding of firearms safety practices, had ignored his responsibilities in that regard and that, when asked by the attending police, had not been able to locate his firearms licence.

32 The Tribunal’s reasons have to be seen, we think, in this broader context.

33 The central importance of public safety considerations is underlined by the principles and objects clause of the Act. Section 3 provides, relevantly:

‘ 3 Principles and objects of Act

(1) The underlying principles of this Act are:

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

(b) to improve public safety:

(i) by imposing strict controls on the possession and use of firearms, and

(ii) by promoting the safe and responsible storage and use of firearms, and

(c) ….

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

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

(b) …,

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

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

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

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

34 There can, we think, be no serious doubt that the Tribunal was engaged in a process that involved the assessing of Mr Lynch’s capabilities in relation to the safe keeping of weapons and ammunition. The objective facts are strongly against Mr Lynch in that regard. There were three loaded guns in the master bedroom; as well as ammunition. There were other unloaded guns. There was a loaded rifle in an unsecured outdoor shed.

35 It was, we think, reasonably open to it to reach the conclusion that Mr Lynch ‘lacks an understanding of the reasoning behind the registration and storage requirements’ (at [34]) and had, as yet, failed to demonstrate a ‘sufficient understanding and appreciation of the importance of safe storage’ (at [35]).

36 It can not, we think, reasonably be complained that he did not know this was an issue of concern and that he was somehow surprised and dealt with unfairly by having it addressed in this way in the reasons for decision. There was no suggestion in the reasons, contrary to Mr Lynch’s submissions, that he would commit further offences, but a concern expressed that while the lack of understanding perceived by the Tribunal continued, there was a risk of that recurring which it regarded as unacceptable.

37 Once the circumstance to which s 24(2)(b)(ii) is directed (contravention) is present, the Commissioner ‘may’ revoke the licence. No guidance is given in the provision as to what factors might be relevant. Without seeking to be exhaustive, relevant factors would, we think, include the gravity of the contraventions, any history of contraventions, mitigating circumstances and general public policy considerations.

38 We acknowledge that the Tribunal might be thought, ultimately, to have reduced its consideration of the question before it to one factor, i.e. does it ‘have confidence that [the applicant] would not pose a risk to public safety if he had access to firearms’. But it is apparent, we think, when the decisions are read as a whole that the Tribunal did have regard to several factors, not just this factor.

39 Point Two. The major objection of Mr Lynch to the Tribunal’s analysis is that it reduced its discussion of both grounds to a single factor – the risk to public safety presented by restoring the licence. The text of the Tribunal’s reasons does lend support to these arguments. There is no clear separation of the s 24(2)(b)(ii) ground from the cl 17 ground, and the text of paras [33]-[35] can be read as reducing the issue to a single matter – awareness and understanding of safety requirements.

40 Despite the way the Tribunal expressed itself at this point of its reasons, we think it is clear, as already explained, that it had regard to a variety of considerations in reaching its conclusion. We have set out the other factors it took into account in the early part of its reasons at [21], above.

41 We accept that the Tribunal’s approach is vulnerable to criticism on a related ground. It tends to treat the considerations it canvasses as going equally to both grounds. In our view, ordinarily, the exercise of different heads of power should lead to separate examination of the relevant considerations. The considerations that may be relevant to one ground may not be identical to those that are relevant to another ground. There is a danger that if grounds are not examined separately that any appropriate distinctions might be missed.

The Merits
42 We do accept that there is a degree of weakness in the Tribunal’s reasons, insofar as they might be seen as reducing the considerations relevant to each of the grounds to a single ‘virtually no risk’ test.

43 We will deal with the merits. As to the first point raised (character), we accept that there are many, impressive positive statements as to Mr Lynch’s standing in the local community and character. As to the second point, we have already referred to the concern shown by the criminal courts to make orders which did not deprive him of his weapons. The courts were prepared to trust him. We agree that these courts were minded to allow Mr Lynch to have back his property. It is clear that the District Court judge did seek to take an approach which minimised the risk to Mr Lynch’s licence.

44 We have already dealt under the question of law heading with the third point raised (claimed failure of Tribunal to examine him on safety awareness and related issues). The final point was Mr Lynch’s need as a primary producer. There was no additional evidence provided in that regard. The evidence before the Tribunal was limited. We accept that there would be occasions in the management of farming properties were firearms would be needed to cull animals, deal with distressed animals and engage in pest eradication. But we are not in a position to take that issue any further on this occasion. There is only limited information before us as to the scale of the need, and alternative means that may be available to deal with these problems.

45 We are satisfied from the submissions made on behalf of Mr Lynch, and the educational activity that he has undertaken, that he can reasonably be regarded today as having an improved understanding of firearms safety standards. But the departures from those standards revealed by this case were grave ones.

46 The regulator of a licensing scheme will frequently be dealing with situations where licence-holders have not previously come to notice. Again, some allowance will often be made if the licence-holder’s conduct is minor or has some special explanation.

47 In this instance the contraventions were numerous and very serious. That Mr Lynch escaped a criminal conviction does not mean that he should therefore automatically escape an administrative sanction against his licence. It is necessary for an administrator to take a stand in dealing with serious contraventions that is seen as credible by the broader community, and sends the appropriate signal to licence-holders as to what is unacceptable. The administrator and the Tribunal can not take an approach, as seems to have been urged on behalf of Mr Lynch in this case, that ignores the systemic implications of its decisions.

48 In our view, the contraventions that occurred in this case were serious enough, giving due weight to Mr Lynch’s history and the explanations given for his conduct, to make the Commissioner’s and Tribunal’s decisions the correct and preferable ones in exercise of the discretion given by s 24(2)(b)(ii). Similarly the separate ‘public interest’ basis for the decision was available in the circumstances. There were aspects of his conduct and explanations which gave rise properly, we think, to the concerns expressed about his misunderstanding of current policy in relation to the personal possession of firearms.

49 The new material filed in these proceedings (evidence of the course undertaken by Mr Lynch) shows a preparedness, we accept, to deal with the problem. It is also to Mr Lynch’s credit that he acknowledged his guilt from the outset.

50 In our view, the decision of the Tribunal and the Commissioner should not be disturbed. In our view it remains the ‘correct and preferable’ one.

51 On the other hand, we think the ‘public interest’ case is not as strong as it was. Mr Lynch is contrite and has taken remedial steps. It may be that at some point in the future the Commissioner might be prepared to reissue a licence, possibly subject to special conditions in relation to the type and number of weapons that can be held and their manner of storage.

Order

Appeal dismissed.