Mansour v Commissioner of Police, NSW Police Force

Case •

[2018] NSWCATAD 228

•

28 September 2018

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Mansour v Commissioner of Police, NSW Police Force [2018] NSWCATAD 228
Hearing dates: 17 September 2018
Date of orders: 28 September 2018
Decision date: 28 September 2018
Jurisdiction:Administrative and Equal Opportunity Division
Before: Emeritus Prof G D Walker, Senior Member
Decision:

Application dismissed for lack of jurisdiction.

Catchwords:

PRACTICE AND PROCEDURE – tribunals - jurisdiction -- firearms prohibition order – spent convictions as a minor.

  WORDS AND PHRASES – a majori ad minus.
Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Children (Criminal Proceedings) Act 1987 (NSW) Criminal Records Act 1991 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Firearms Act 1996 (NSW)
Interpretation Act 1987 (NSW)
Cases Cited: Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292;
Farah v Director, Department of Finance and Services [2014] NSWCATAP 23;
Ferdinands v Commissioner for Public Employment [2006] HCA 5, (2006) 225 CLR 130;
Hamid v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 43;
McIntyre v R [2009] NSWCCA 305;
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355;
Saraswati v R [1991] HCA 21, (1991) 172 CLR 1;
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34, (2017) 91 ALJR 936.
Category:Principal judgment
Parties: Mr Khalid Mansour (Applicant)
Commissioner of Police, New South Wales Police Force (Respondent)
Representation:

Counsel:
Mr R Stanton (Applicant)
Mr M Dalla-Pozza (Respondent)

  Solicitors:
AJL Legal (Applicant)
Office of General Counsel (Respondent)
File Number(s): 2018/00162329

Reasons for decision

  1. The applicant Mr Khalid Mansour applied to this tribunal on 24 May 2018 for review of a decision by the respondent to make the applicant subject to a firearms prohibition order (FPO) under s 73 of the Firearms Act 1996 on the ground that by reason of his criminal history he is not a fit and proper person in the public interest to be permitted to have possession of a firearm. The order was personally served on the applicant on 25 November 2017 and took effect from that time (s 73(3)).

  2. The applicant had been convicted of the following offences and on the following dates:

  • 17 March 2009, recklessly wounding another person (Crimes Act 1900, s 35(2);

  • 31 March 2010, possessing or using a prohibited weapon without a permit (Weapons Prohibition Act 1998, s 7);

  • 14 October 2010, robbery in company (Crimes Act 1900, s 97).

  1. The applicant was under the age of 18 at the time of each of those offences and was convicted and sentenced by the Children’s Court for each one (exhibit R1).

Applicable legislation

  1. The basic jurisdictional provision in relation to FPOs is s 75(1) of the Firearms Act, which entitles a person to apply to this tribunal for review of a firearms prohibition order made against the person. But s 75(1A) precludes a “disqualified person” from applying for such a review:

(1A)  Despite subsection (1), a person may not apply for a review of a firearms prohibition order made against the person if the person would be required under section 11 (5) or 29 (3) to be refused a licence or permit (a disqualified person) had the person not been subject to a firearms prohibition order.

  1. Section 11(5)(b) provides as follows:

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

(b)  has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or….

  1. Section 29(3)(b) is similarly worded and applies to permits rather than licences. Clause 5 of the Firearms Regulation 2017 relevantly provides as follows:

5   Offences that disqualify applicants

(1)  For the purposes of sections 11 (5) (b) and 29 (3) (b) of the Act, the following offences are prescribed:

(a)  Offences relating to firearms or weapons

An offence relating to the possession or use of a firearm or any other weapon, or a firearm part or ammunition, committed under:

(i)  the law of any Australian jurisdiction, or

(ii)  the law of any overseas jurisdiction (being an offence that, had it been committed in Australia, would be an offence under the law of an Australian jurisdiction)….

(d)  Offences involving violence

An offence committed under the law of any Australian or overseas jurisdiction, being:

(i)  an offence involving the infliction of actual bodily harm on a person in respect of which the penalty imposed included any term of imprisonment (whether or not suspended), a community service order, a good behaviour bond or a penalty of $500 or more, or

(ii)  an offence involving kidnapping or abduction, or

(iii)  an offence involving stalking or intimidation, or

(iv)  an offence of attempting to commit, threatening to commit or conspiring to commit an offence referred to in subparagraph (ii) or (iii)….

(g)  Offences involving robbery

An offence under the law of any Australian or overseas jurisdiction involving robbery (whether armed or otherwise)….

  1. The Criminal Records Act 1991 (CR Act) establishes a scheme whereby convictions become “spent”, with specified consequences, when the prescribed “crime-free period” has been completed. Section 10 of that Act relates to orders made by the Children’s Court:

10   What is the crime-free period for orders of the Children’s Court?

(1) The crime-free period in the case of an order of the Children’s Court under section 33 of the Children (Criminal Proceedings) Act 1987 (other than a finding or order referred to in section 8 (2) or (3) of this Act) in respect of a person is any period of not less than 3 consecutive years after the date of the order during which:

(a)  the person has not been subject to a control order, and

(b)  the person has not been convicted of an offence punishable by imprisonment, and

(c)  the person has not been in prison because of a conviction for any offence and has not been unlawfully at large.

(2) The crime-free period may commence before the date of commencement of section 7.

  1. The consequences of a conviction becoming spent include those set out in s 12 of the CR Act, which provides:

12   What are the consequences of a conviction becoming spent?

If a conviction of a person is spent:

(a)  the person is not required to disclose to any other person for any purpose information concerning the spent conviction, and

(b)  a question concerning the person’s criminal history is taken to refer only to any convictions of the person which are not spent, and

(c)  in the application to the person of a provision of an Act or statutory instrument:

(i)  a reference in the provision to a conviction is taken to be a reference only to any convictions of the person which are not spent, and

(ii)  a reference in the provision to the person’s character or fitness is not to be interpreted as permitting or requiring account to be taken of spent convictions.

  1. Section 12 is subject to ss 10(4) and 30(1) of the Firearms Act. Section 10(4) provides in pertinent part that s 12 “does not apply in relation to an application for a licence”. Section 30(10) makes similar provision for the case of applications for permits.

  2. At a directions hearing held before Montgomery SM on 26 June 2018, the respondent submitted that the tribunal lacked jurisdiction to hear the applicant’s case for review of the decision making him subject to an FPO. The issue in this application is therefore whether the combined effect of the above provisions is to deprive the tribunal of jurisdiction to hear and determine the application.

Applicant’s submissions

  1. In written submissions filed on 31 August 2018, the applicant submitted inter alia that the issue in the application was that the applicant had not sought any licence or permit under the Firearms Act, and did not invite the making of an FPO. Consequently, s 75(1A) could not apply to him. Further, the order was made on the basis of convictions that effectively were spent under the CR Act.

  2. The tribunal had jurisdiction, the applicant contended, because the concept of “disqualified person” in s 75(1A) did not accord with the general statutory intent in terms of reading the competing provisions of the Firearms Act and the making of an FPO with the provisions of the Children (Criminal Proceedings) Act 1987 (CCP Act). All of his convictions occurred in circumstances where the legislation and the tensions created in terms of construction did not, on the basis of the statutory intent, provide for a fair and just reading of “disqualified person” extending to matters of, and concerning, juveniles and their records.

  3. On a fair reading of Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368 and Kocic v Commissioner of Police, New South Wales Police Force (GD) [2013] NSWADT 53 and [2013] NSWADT 146, the applicability of convictions as a minor, which effectively were spent, raised the question whether, in terms of the statutory construction issue, such matters as a juvenile could be regarded as matters concomitant with the public interest as relied upon for the determination that the applicant was a disqualified person.

  4. Context and purpose had to be taken into account where they rationally assisted in the proper understanding of a statutory provision, especially in cases where the provision was either on its face ambiguous, or alternatively capable of different constructions. Matters for which the Children’s Court dealt with that person as long ago as 2010 would not effectively warrant being taken into account and the rational assessment, let alone assistance, to determine that the person was a disqualified person for the purposes of the Act.

  5. The relevant context here was that the offending was as a juvenile and the fact that since that offending there had been no offending whatsoever which, on a proper basis, according to reason and logic, would enable or should have enabled a proper understanding of the text of the legal instrument for the determination of the concept of disqualified person that such a determination could not be arrived at by the determination of whether a person was a juvenile able to be declared a disqualified person and, accordingly, the subject of an FPO.

  6. The provisions dealing with the adjudication of minors should be read in conjunction with the determination of the making of an FPO whether persons are minors when they have matters taken into account of and concerning their antecedents, and as long ago as 2010 as a minor, warrant the proper adjudication of the Act and the proceedings under it to determine whether they then in turn can be dealt with effectively as a disqualified person under the Act: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355, [69]. Sections 6, 7 and 33 of the Interpretation Act 1987 also supported reference to context and purpose.

  7. Accordingly, on a fair reading of the provisions dealing with young persons under the CCP Act, coupled with the determination sought to be made by reliance on the convictions as a juvenile to establish and find the applicant was a disqualified person under s 75(1A) of the Firearms Act were against the tenor of the legislation and as such impermissible.

  8. At the hearing the applicant reiterated those contentions and pointed out that although the applicant’s convictions were spent, he was still being treated as exposed to consequences. An inconsistency arose between s 10(1) of the CR Act and s 10(4) of the Firearms Act, as the latter provision made no reference to s 10 of the CR Act. The exclusion of any reference to s 10 showed that the removal of any impediment to a minor’s application for a licence was preserved. A purposive interpretation would result in a finding that the tribunal had jurisdiction to hear the application, as it was not intended to have been excluded.

Consideration

  1. The basic jurisdictional provision applying to a firearms prohibition order such as the one that is the subject of the review application in this matter is s 75(1)(f), which permits a person to apply to this tribunal for review of “a firearms prohibition order made against the person”. But s 75(1A) debars a “disqualified person” from applying for such a review. A disqualified person is a person who “would be required under section 11(5) or 29(3) to be refused a licence or permit… had the person not been subject to a firearms prohibition order” from applying for a review of a firearms prohibition order.

  2. Section 11(5)(b) precludes the Commissioner from granting a licence to a person who “has, within a period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law”. Section 29(3)(b) makes similar provision in relation to permits.

  3. Clause 5(1) of the Firearms Regulation prescribes inter alia the following offences for the purposes of ss 11(5)(b) and 29(3)(b):

  • An offence relating to the possession or use of a firearm or any other weapon;

  • An offence “involving the infliction of actual bodily harm on a person in respect of which the penalty imposed included” (inter alia) a community service order;

  • An offence “involving robbery (whether armed or otherwise)”.

  1. The applicant’s relevant criminal history as detailed in exhibit R1 is set out above. It is not disputed that the applicant incurred those convictions and that they are now spent under s 10(1) of the CR Act as the applicant completed the 3-year continuous crime-free period required for Children’s Court convictions.

  2. His conviction on 31 March 2010 of possessing or using a prohibited weapon without a permit under s 7 of the Weapons Prohibition Act 2008 is literally an offence “relating to the possession or use of… any other weapon” for the purposes of cl 5(1)(a) of the Regulation.

  3. Again, his conviction on 14 October 2010 of robbery in company, leading to a community service order, must literally “involve” robbery, even on the approach taken in Farah v Director, Department of Finance and Services [2014] NSWCATAP 23, in which the Appeal Panel held that the phrase “an offence involving” (in a different context) had to be determined from the description of the relevant statutory offence. The word “robbery” itself is used in both provisions.

  4. As regards the conviction for reckless wounding, the question arises whether that offence is one “involving the infliction of actual bodily harm”. That phrase was held in McIntyre v R [2009] NSWCCA 305, [44] to have the following meaning:

44 The term “actual bodily harm” is not defined in the Crimes Act 1900. The phrase “bodily harm” has been said to include any hurt or injury calculated to interfere with the health or comfort of the victim: R v Overall (1993) 71 A Crim R 170 at 178. It need not be permanent, but must be more than merely transient or trifling - it is something less than “grievous bodily harm”, which requires really serious physical injury, and “wounding”, which requires breaking of the skin: R v Lardner (NSWCCA, 10 September 1998, unreported, BC9804715 at page 4). The distinction between grievous bodily harm and actual bodily harm involves an assessment of the degree of harm done, with one being more serious than the other: R v Overall at 173-174. Bruises and scratches to a victim are typical examples of injuries that are capable of amounting to actual bodily harm: R v Cameron [1983] 2 NSWLR 66 at 67. If a victim has been injured psychologically in a very serious way, going beyond merely transient emotions, feelings and states of mind, that would likely amount to actual bodily harm: Li v R [2005] NSWCCA 442 at [45].

  1. As “wounding” is thus treated as being a more serious form of harm than actual bodily harm, it is reasonable to conclude, in light of the purpose of the legislation, that the principle a majore ad minus would favour an interpretation that treats the greater as including the lesser and therefore wounding as constituting actual bodily harm. The intent of ss 11(5)(b) and 29(3)(b) is plainly to preclude an applicant convicted of certain offences that are regarded as being especially serious from holding a licence or permit. The requirement in cl 5(1)(d)(i) that the penalty imposed include, inter alia, a community service order is clearly satisfied.

  2. It should be noted that, even leaving aside the convictions for the offences “involving” robbery or “involving” actual bodily harm, the requirements of cl 5 are satisfied by the conviction for possessing or using a prohibited weapon, as it is clearly an offence “relating to the possession or use of a… weapon” within cl 5(1)(a).

  3. Prima facie, therefore, s 75(1A) would operate so as to debar the applicant from seeking review of the FPO.

  4. The applicant submits, however, first, that s 75(1A) cannot apply to him because he has not sought a licence or a permit. But that contention fails to give effect to the language of the provision. Section 75(1A) constructs a hypothetical scenario requiring the decision-maker to consider what the consequence “would be” “had the person not been subject to a firearms prohibition order from applying for a review of a firearms prohibition order”. It requires ss 11(5) and 29(3) to be applied on that hypothetical assumption.

  5. Next, the applicant argues that s 75(1A) does not apply to him because it is inconsistent with the intent and purpose of the CCP Act. It would not be rational, the argument goes, to take Children’s Court matters into consideration when the context was that the offences had occurred when the applicant was a juvenile and there had been no offending since then. To do so would be contrary to the tenor of the CCP Act.

  6. The applicant did not identify any particular provision or provisions of the CCP Act as being inconsistent with s 75(1A) or s 10(4) in such a manner as to lead to an implied repeal. Indeed, it was not argued that there was an implied repeal coming within the criteria enunciated by the High Court in Saraswati v R [1991] HCA 21, (1991) 172 CLR 1 and Ferdinands v Commissioner for Public Employment [2006] HCA 5, (2006) 225 CLR 130. In the latter case the Court declared that in order to find an intention to effect an implied repeal, there “must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other…. (at [17]). In any event the argument would be a difficult one to sustain as s 75(1A) (as well as s 10(4)) was enacted after the CCP Act. The “general presumption” therefore applies.

  7. The applicant’s proposition, if I understood it correctly, was rather that consideration of purpose and context should lead to s 75(1A) being read down so as not to apply to offences by minors. But consideration of context must take account of the principles and objects of the Firearms Act also. The primary principle of that legislation is stated in s 3 to be the “overriding need to ensure public safety”. While the applicant contends that there are purposive considerations favouring the construction he proposes, there are thus at least equally compelling purposive considerations favouring the opposite construction.

  8. The construction advanced on behalf of Mr Mansour would have the effect of relaxing the licensing arrangements so as to permit a person who had been convicted of a relevant offence as a minor to apply for a licence or permit (and also, by reason of s 75(1A) to seek a merits review of a decision to impose an FPO). From a public safety point of view there is no reason to apply a lesser period of disqualification to a person convicted of a prescribed offence when under the age of 18.

  1. Further, as the High Court has recently reiterated in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34, (2017) 91 ALJR 936, [14], the starting-point for the ascertainment of the meaning of a statutory provision must always be the legislative text itself. In Hamid v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 43, at [74] – [76], in the context of an FPO, I referred to the principle that legal interpretation should lean in favour of fairness. That principle presupposes, however, a clear statutory foundation for the preferred construction, such as existed in that case.

  2. In the present case, no reasonable interpretation could be advanced that would enable offences committed by minors to be disregarded. To do so would require implying words into the legislation, and Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292, 297 – 299 lays down stringent requirements before that approach can be adopted. It must appear that a literal reading gives such an unjust result that a purposive reading should be given to the provision. The legislative intention must be clear but the omitted words must be obviously necessary to give effect to that intention. In those circumstances it is possible to remedy the omission in the process of construction, but three requirements must be met.

  3. Those requirements are:

  • It must be possible from consideration of the provisions of the Act read as a whole what was the mischief that Parliament intended to remedy.

  • It must be apparent that the drafter and the legislature had inadvertently omitted to deal with an eventuality that had to be dealt with to achieve that result.

  • It must be possible to state with certainty what were the additional words that would have been inserted if attention had been drawn to the omission before passage of the legislation.

  1. Two, and possibly three, of those conditions are not satisfied in this case. The applicant did not seek to derive from the legislation as a whole an identifiable mischief that the Legislature intended to remedy. On the face of it, ss 10(4) and 75(1A) seem designed to ensure that persons convicted of certain offences should not be entitled to seek tribunal review of an FPO and therefore potentially to possess and use firearms. Next, it is not apparent that the drafter and the parliament had inadvertently omitted to deal with an eventuality that had to be dealt with in order to achieve that result. And while it might be possible to suggest additional words that would make an exception for offences committed while an applicant was a minor, that is not sufficient in itself.

  2. At the hearing the applicant contended that Bermingham was not in point because the fact that s 10(4) of the Firearms Act does not refer to s 10 of the CR Act means that the crime-free period remains at 3 years for offences committed by minors. But s 10(4) did not need to refer to s 10, for the same reason that it did not refer to the general crime-free period for non--minor offences in s 9. It achieved its purpose by excluding the operative provision, which is s 12. The setting of appropriate crime-free periods is an exercise that logically precedes s 12.

  3. For all of those reasons Kocic is of little assistance in resolving the issues in the application. It should also be noted that Kocic was decided before ss 10(4) and 30(10) were enacted.

  4. On a consideration of all the submissions, I conclude that the tribunal lacks jurisdiction to hear and determine the application for review of the FPO.

Order

  1. Application dismissed for lack of jurisdiction.

**********

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: 28 September 2018

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