Mibus v Commissioner of Police, New South Wales Police Force

[2023] NSWCATAD 210

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Mibus v Commissioner of Police, New South Wales Police Force [2023] NSWCATAD 210

Hearing dates:

26 July 2023

Date of orders:

4 August 2023

Decision date:

04 August 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Emeritus Prof G D Walker, Senior Member

Decision:

(1)   Decision under review set aside.

(2)   A category ABC firearms licence is to be issued to the applicant.

Catchwords:

LICENSING – firearms licensing – licence refusal – domestic arrangements – safe storage – mental health – public interest.

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Firearms Act 1996 (NSW)

Cases Cited:

Briginshaw v Briginshaw (1938) 60 CLR 316;

Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42;

Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16;

Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50;

Drake v Minister for Immigration and Ethnic Affairs (1972) 2 ALD 60;

Ford v Commissioner of Police [2022] NSWCATAD 87;

Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218;

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

Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368;

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

Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 1;

Sterjovski v Director-General, Department of Transport [2002] NSWADT 10;

Tolley v Commissioner of Police, New South Wales Police Force [2006] NSWADT 149;

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

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Melville Louis Mibus (Applicant)
Commissioner of Police, New South Wales Police Force (Respondent)

Representation:

Solicitors:
Applicant (Self-represented)
McCullough Robertson (Respondent)

File Number(s):

2023/00059938

Publication restriction:

Nil

REASONS FOR DECISION

1. The applicant Mr Melville Louis Mibus applied to this tribunal on 22 February 2023 for review of a decision by the respondent Commissioner on 5 January 2023 to refuse his application for a category ABC firearms licence. He had applied for that licence as a primary producer on 13 October 2022 but the application was refused on 28 November 2022.

2. Mr Mibus had previously held a firearms licence for a total of 29 years and had never been charged with any offence, but the licence was revoked on 11 August 2021, the revocation being affirmed on 20 October 2021.

3. The applicant applied for an internal review of the 28 November 2022 refusal on 15 December 2022 (exhibit R1, pp 73 – 83), which affirmed the refusal decision on 5 January 2023 (id., 86 – 89).

4. Both the revocation and the refusal decisions rested on the ground that the applicant’s son, Dean Mibus, who resided with him, was suffering from mental health problems that might impair his father’s ability to exercise continuous and responsible control over his firearms and that accordingly it was not in the public interest for him to continue to hold a licence.

5. In particular, the internal review decision referred to an incident on 12 July 2021 when ambulance and police were called by the applicant to his home because of Dean’s behaviour. He was on prescribed medication but was inclined to take more than the directed dose, leading the applicant to secure his medication in a safe. While the applicant was away in town, Dean while searching for the medication upturned furniture in the bedroom, smashed a dressing table mirror and damaged a television set, as well as breaking two kitchen chairs.

6. When discussing Dean’s behaviour with police, the applicant said that about two days earlier, while he had been consoling Dean and with no provocation, Dean had lashed out and struck him in the mouth, loosening a tooth. He also disclosed to police that Dean had previously had hospitalizations because of mental health concerns. While talking to police, Dean had initially appeared calm and responsive, but when he attempted to obtain his mobile telephone from the bedroom, he became aggressive towards police and tried to close the door on them. He was later arrested and placed in a police vehicle. As a result of the matter Dean was charged with offences and made subject to a provisional apprehended violence order (PAVO) for the applicant’s protection. That order was then replaced with an interim apprehended violence order (IAVO), which was later withdrawn.

7. The applicant applied for review in this tribunal on 22 February 2023 and the matter came on for hearing on 26 July 2023 in Sydney.

Applicable legislation

8. Section 11(4)(a) of the Firearms Act provides that the Commissioner (and on review this tribunal) must not issue a licence to a person “if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant’s way of living or domestic circumstances”.

9. Section 11(7) of the Firearms Act provides that “the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest”.

10. The issues in this application are thus whether there is reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of his domestic circumstances, namely his relationship with his son Dean, and whether it would be contrary to the public interest for a licence to be issued to the applicant. The latter power is discretionary.

The evidence

11. The respondent did not call oral evidence but instead relied on the written material, including the s 58 documents (exhibit R1) and on cross-examination of the applicant.

Mr Melville Mibus (Applicant)

12. The applicant had not filed a witness statement, but in oral evidence at the hearing adopted two letters addressed to the tribunal dated 7 April 2023 and 4 July 2023 respectively (exhibit A1). In them he wrote that the case revolved around the mental health and well-being of his son Dean, whose mental condition was such that he would put on a brave front and cover it up when someone other than family arrived on the scene.

13. That was what had happened on 12 July 2021 when the police and ambulance arrived. With his condition he had damaged property and punched holes in walls, but he would never deliberately hurt or harm other people. His condition is such that he would only harm himself first and foremost. Just three days previously [i.e. on 4 April 2023] one of his good friends had taken his own life, which had saddened him deeply. He then told his mother that he planned to take his life before his 30^th birthday, on 10 April. He now realized the hurt that caused to loved ones left behind and had promised his mother and the applicant that he would not to it. His nature was such that he will never willingly hurt his parents and other people.

14. In relation to police event report E81946152 (20 July 2021), his wife had stated that Dean would never be violent towards her, and he feels exactly the same way, that Dean would never be violent towards him. He took issue, however, with some of the statements in event report E81397640 (12 July 2011), which stated that he and Dean had argued, which was not true, as the applicant had left the property early while Dean was still asleep. Nor was it true that Dean had been “aggressive”. When the applicant had seen the mess he had created, he felt that Dean needed medical help and consequently called the police and ambulance for help to get him to hospital for medical care. Unfortunately he had not received the help that he needed.

15. In relation to the incident two days (not two weeks) previously, Dean had been sitting quietly on the bed but the applicant could see in his face that he was not well. He therefore sat down beside him to try to support him emotionally, and it was not true that Dean had been “swinging his arm outwards with a closed fist” and “[had] hit the victim in the mouth with his fist”. In fact he had been sitting beside Dean with his arm around his shoulder and Dean hit his father with the back of his open hand. Because his tooth was in the process of being rebuilt, it broke easily. Dean immediately apologized and the applicant knew he was sincere. The police report was not an accurate record and he challenged anyone to show him the police body worn video so that he could set the record straight. Dean had now voluntarily stopped taking Ritalin.

16. The applicant wrote that he had been involved with firearms for 60 years without any incident. The fact that the local police and magistrate supported the early revocation of the ADVO was ignored, as were their character references.

17. For farmers firearms are a tool of trade. For a business person to have their tool of trade taken away without a serious and genuine reason was a very serious matter. When the police carry firearms in public, they could be overpowered, but everyone knows that all are safer if they do carry firearms. The same applied for farmers such as himself. If Dean were going to overpower him to obtain a firearm, he would have done so to get extra medication, but it was just not in his nature to behave in that way.

18. The truth is that Dean is a very placid and caring person who would never hurt or harm anyone else. He is not the brutal monster that he had been made out to be.

19. In his letter of 4 July 2023 the applicant wrote that there is a fine line between duty of care and bullying. He felt that the line was crossed when he called the police and ambulance to help get Dean to special medical care on 12 July 2021. The evidence was obvious, with the damage done to property in the house that he needed help that day. But instead, police decided to charge him with an ADVO against the applicant’s wishes. They took him into custody, strip-searched him and locked him up overnight to be charged in court the next day. All of that had caused him to go into severe depression for at least three months, during which he stayed in bed night and day, completely unable to do anything.

20. Dean had been bullied by some of his school teachers in year 7, as a result of which he had suffered with PTSD, anxiety and depression, all of which can be managed with appropriate medical care and counselling. But now the police had bullied him and had tried to justify their actions by fabricating the statement he made to them. Things had been taken out of context, such as when he said that he thought Dean’s condition was worsening, he meant on that day, not indefinitely.

21. Some weeks later he complained to a policewoman about how the matter had been handled. As a result she supported him in the early revocation of the ADVO, attended court and had been supportive in any way she could. On other occasions he had been promised by someone at Moree police that the superintendent would come to speak to him, but that never happened.

22. His son suffers with anxiety and depression in varying degrees, which had been diagnosed by a psychiatrist, who had said he did not suffer from bipolar disorder or any associated illness. Over the years he had been prescribed many different medications, all of which had side-effects worse than the illness. He no longer takes Ritalin and is much better for it. Dean visits his doctor regularly and also has a good psychologist counsellor whom he consults regularly.

23. The major concern seemed to be that Dean could overpower him to obtain a firearm unlawfully. If that had been the case, he had had at least 15 to 18 years to do that. The applicant could honestly say that he had never asked him or even suggested that he allow him to have the use of a firearm. The same principle applied when the applicant had control of his medication. He never forcefully tried to take extra medication, even when he wanted more. He has always treated his father with respect.

24. The applicant concluded by saying that he had used firearms for at least 60 years and had never had even the slightest incident. When he carries a firearm, he always treats it as though it is loaded, even when he knows that it is not. The ongoing safety of every person around him is always of the utmost importance to him. He does not simply pay lip service by that statement because he thinks that is what the tribunal wanted to hear. He is very serious about public safety, which is of the utmost importance to him, as it always has been over the past 60 years. If he had even the slightest concern that he could not achieve that, he would not be wanting to get his firearms licence again.

25. In oral evidence at the hearing Mr Mibus reiterated most of those points, adding in connexion with the incident of 12 July 2021 that he had called the police and ambulance because Dean’s doctor had said that he needed medical care. Dean had not struck him with his fist, but had hit him with the back of his hand, apologizing at once. His tooth had previously become loose when a field gate hit it, but because he suffers from osteoporosis, the tooth could not be replaced and had suffered from a serious weakness.

26. Dean’s trouble started at school. He had done well, being dux and captain of the primary division. He had always been fair and honest in whatever he did, but when in year 7 he had spoken up for some other pupils who had been wrongly accused of transgressions, that had caused some teachers to turn on him and they punished him for things he had not done. He had not told his parents at home what was happening until it was too late, and the damage to him was done (exhibit R1, pp74 – 75).

27. That was when his mental health problems had started. He was diagnosed as not suffering from bipolar disorder, but mainly from anxiety and depression. He had been prescribed Ritalin, which had made him worse over the years, but he was better now. It had taken much effort to help Dean, and the applicant’s wife had left him as a result of the strain.

28. In cross-examination the applicant said he had been licensed for firearms from 1998 to 2021, but had used them many years before that. Guns were needed on the property, as foxes killed his hens and wild pigs, which were aggressive and a serious threat, had damaged his crops. Miner birds had damaged his fruit, but he had used a 410 to shoot 20 of them, which had reduced the population and the problem. But he did not much like shooting. He had always stored his firearms at home, as it was pointless to store them elsewhere.

29. He had kept Dean’s Ritalin in his category 3 gun safe, as he was over-using it. It is an addictive substance and he took too much, sometimes running out, as chemists could only supply one month’s quantity at a time. He had never become physical with the applicant, but did give him a hard time. He had damaged furniture and a television set. He was not in an aggressive mood, but his father had left some Ritalin out for him, possibly giving him some extra to buy time. Dean had gone looking for more and in the process had damaged the items mentioned, in the bedroom, not in the whole house. He had been warned by his doctor that over-using Ritalin could result in a heart attack, and he needed care.

30. Asked about the statement in the event report that he had said Dean had “lashed out” at him, the witness said he might have said that, but he had not meant it the way it sounded. Dean had been living with his mother at Pallamawa, outside Moree, because of the ADVOs and was still there, but the applicant expected he would be moving back with him. He had lived with his father before without any problems. He did visit occasionally.

31. Dean had never tried to overpower the applicant, but in 2021 had upturned the bedroom looking for Ritalin, but it was in the safe. He had never been violent in relation to his medications. The holes in the walls that police observed were from previous incidents. Dean had overcome that and had tried to make up for the damage he had caused and which he now regrets. He would never harm anyone, intentionally or not. He had considered self-harm, until he had seen the pain that it had caused when his friend had committed suicide. He now knows how much his parents love him.

32. He is no longer taking medication and is seeing a counsellor. He is not aggressive. At present he is unemployed though he had previously worked in the security industry. That had worked until he had been sent to do security at a hotel, which was too hard. He had been diagnosed by a psychiatrist for a disability pension permanently, though he does still work at clubs, usually singing.

33. His medical state is satisfactory now that he is no longer on Ritalin. He owns a car and has a driver’s licence, but has no firearms licence and does not wish to obtain one, as he was not interested in shooting. He had attempted suicide at school by hanging himself with his school tie, but the tie had broken. He had also planned to commit suicide by using petrol to burn down the school and kill himself in the process. As a result he had been an inpatient for a week at Dubbo and later received treatment at the Nexus centre at John Hunter Hospital.

34. By way of re-examination the applicant stressed that firearms were a tool of trade for a farmer and a woman police officer at Moree had supported the revocation of the ADVO. He had been told he could recover his firearms in 30 days, but that had not happened.

35. In a letter to the Firearms Registry dated 15 December 2022 (exhibit R1, pp 73 – 79) the applicant reiterated the damage that Dean had suffered at school but added that “thankfully he still has his caring and law-abiding attitude. If he is with me when I am driving, he keeps an eye on the speedo and if I am a bit over 50 kph in a built-up area, he will say “’Dad you are speeding’”. The reference to “aggression” in the police report referred to when the applicant could tell that Dean was not feeling well. He was sitting alongside him with his arm around his shoulder. After a while Dean had brought his open hand up and hit him with the back of his hand on his face. It was not a hard blow and he did not get a bleeding nose or a thick lip from it. But a front tooth was being rebuilt and broke very easily.

36. Everything he had said to police on 12 July 2021 such as that Dean’s mental health was worsening (on that day, not generally), that he did not comply with his prescribed doses of medication, which had to be kept in the safe, and that he lashed out on the spur of the moment had been said to try to convince the police to have him taken to specialized medical care on that day. Dean had an innate ability to snap out of it when the police arrived, and they could not see much wrong with him mentally, so all that they wanted to do was to have him charged. The assertion that Dean reacted with violence and aggression with little or no provocation was untrue, and in fact the opposite was the case. He had never ever expressed a wish to obtain or use firearms, even for recreational purposes. He just suffers with anxiety and depression like many other people with mental illness, and those people are not dangerous.

37. The applicant stated that he has a particularly close father-son relationship with Dean and tendered an (undated) letter from Dean saying, inter alia, “You have given me so much in life and you have shown me the power of forgiveness, patience and prayer. I am writing this because of all the things you deserve from me; my honest words, should come without question…. I want to put an end to all of our pain; because when I hurt, you hurt. I love you, Dad, I’m sorry” (exhibit A2)

Respondent’s submissions

38. The respondent relied on written submissions filed on 8 June 2023 which, after setting out the background and the applicable law, contended that Dean Mibus’s history of mental health issues and the evidence relating to the 12 July 2021 incident showed that the applicant’s domestic circumstances are such that he cannot personally exercise continuous and responsible control over his firearms because his son Dean resides at or frequents the applicant’s residence, and for those reasons it was not in the public interest that the applicant hold a firearms licence.

38. The Commissioner did not submit that the applicant is not a fit and proper person to hold a licence, but the tribunal was required to consider whether the applicant can be trusted to have possession of firearms without danger to public safety or to the peace. Given the potential risks to public safety in permitting a person to possess and use a firearm, issuing a firearm licence is a privilege conditional on the overriding need to ensure public safety.

39. The applicant’s residential address was his nominated safe storage address and was the residential address of Dean and the location of the 12 July 2021 incident. Nothing that the applicant had submitted provided evidence that Dean does not reside at, or frequent, that address. His submissions regarding the close relationship with his son, along with the clear evidence provided by the applicant regarding Dean’s mental state and arising out of the police reports regarding Dean’s volatile behaviour, demonstrate that there is a risk to public safety simply by the existence of firearms on the premises when Dean is aware they are present.

40. Although the applicant was not alleged to have perpetrated any domestic violence while firearms were stored at his address, it was the scene of a domestic violence incident and other domestic-related incidents where Dean was reported by the applicant to lash out on the spur of the moment and damage property and punch holes in the walls. The respondent submitted that the body worn video footage further illustrates that Dean responds with aggression with little or no provocation.

41. The circumstances in which the applicant lives mean that there is an unacceptable risk to public safety from his use and possession of firearms. The respondent submitted that the tribunal has cause to believe that the applicant may not personally exercise continuous and responsible control over firearms, considering Dean’s ongoing mental health issues and concerns that police held that led to Dean being issued with the IAVO and subsequently the ADVO.

42. The respondent highlighted that there was no medical evidence demonstrating that Dean’s mental health issues had resolved or whether his stopping medication was medically recommended. The Commissioner’s concerns had not been resolved. The tribunal ought to conclude that the applicant’s ongoing possession and use of firearms would result in a risk to public safety which included a risk to the applicant and Dean as members of the public.

43. The history of domestic violence that had occurred at the applicant’s residence gave rise to a reasonable cause to believe that the applicant might not be able personally to exercise continuous and responsible control over his firearms and that a person who is not licensed to hold a firearm, namely Dean, might handle the firearms. It could not be said that there was virtually no risk to public safety if firearms were stored at, or brought onto, the property.

44. In Tolley v Commissioner of Police, New South Wales Police [2006] NSWADT 149, the tribunal had affirmed a decision to impose a condition on the applicant’s firearms licence restricting him from storing his firearms at his residential address, as result of concerns for public safety arising from his son’s conduct. But that case was distinguishable because Tolley’s reason for holding a licence was target shooting and vermin control at a property that was not his residential address, whereas in this case the applicant seeks firearms for use on his property, such that if they were stored elsewhere, they would still be on the property at certain times. Further, Tolley did not know of his son’s criminal activities, whereas the applicant previously sought police assistance to deal with Dean’s behaviour.

45. Although the factual circumstances differ, these proceedings arise out of a concern similar to that in Tolley over the risk to public safety if the applicant keeps the firearms at his residential address. This was not a case in which a storage condition could be imposed to address the risk, given the hypothetical situation in which Dean could frequent the applicant’s property when firearms were out of storage for use in connexion with the applicant’s primary production.

46. In relation to the public interest, the tribunal was required to look at the applicant’s conduct as a whole, including potential future conduct. In that regard, past conduct of the applicant was a significant guide in assessing future conduct: Ford v Commissioner of Police [2022] NSWCATAD 87, [59]. Further, for the reasons set out in connexion with s 11(4)(a,) it was not in the public interest for the applicant to hold a firearms licence and the correct and preferable decision was that a category AB licence be refused under s 11 of the Firearms Act.

47. In oral submissions at the hearing Ms McMahon acknowledged that the applicant is a fit and proper person to hold a licence, but the problem lay with his control of firearms as his son is a safety risk. That assessment was exacerbated by the applicant’s own evidence of Dean’s drug overdosing and his suicide attempts. While the ADVO against Dean had been revoked, the test for revocation of an ADVO was different from the test under s 11.

48. There was no medical evidence about Dean’s mental health state, but it was not disputed that he had suffered from PTSD, depression and anxiety, such that the applicant stated that he needs care. The reasoning in Tolley was relevant as Dean does frequent the property and may move back there. A storage condition would be unpractical, as the applicant had conceded, and no other conditions would address the respondent’s concerns.

Consideration

50. Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal’s role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner’s decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.

51. The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the CAT Act (s 30) and the Firearms Act, including the Commissioner’s refusal of a licence or permit: s 75(1)(a). Although the internal review requested by the applicant has not been resolved, it is deemed to have been finalized by s 53(9)(b) of the ADR Act. The tribunal is to make its own decision and there is no presumption that the Commissioner’s decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.

52. Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(4)(a) states that a licence must not be issued if the Commissioner (or on review this tribunal) has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant’s way of living or domestic circumstances.

53. The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] – [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] – [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] – [12]. They do, however, provide guidance for the tribunal’s exercise of jurisdiction.

Domestic circumstances

54. The respondent explicitly made clear that it was not submitted that the applicant is not a fit and proper person to hold a firearms licence, the primary case instead relating to the applicant’s son Dean who visits the applicant’s residence where the firearms safe is located, has previously resided there and may in the future return to live there. Dean had a conviction recorded at Moree Local Court on 1 February 2021 for cultivating a small quantity of marijuana, but the respondent’s chief concern was what was described as his history of mental health problems which, it was submitted, made out a case for mandatory licence refusal to the applicant under s 11(4)(a).

55. The first incident in evidence was contained in police event report E81946152, 24 January 2021 (exhibit R1, pp 10 – 11), which records that police were contacted by an unnamed “external service” that was concerned that Mrs Mibus might be in need of protection from her son Dean. When police spoke to her, she said that her son had “mental issues” and believed he needed help with those, but that he would never be violent against her. The applicant stated that he felt exactly the same way, that Dean would never be violent towards him.

56. The episode mainly relied on, however, occurred on 12 July 2021 (event E 81397640, exhibit R1, pp 17 – 20). That report states that the applicant had unsuccessfully sought treatment and assistance for Dean’s mental health conditions for some time. Dean was prescribed a number of medications, which the applicant secured in his safe to avoid Dean misusing them, after he caught Dean “snorting” one of the medications prescribed to him.

57. The report states that on the morning of 12 July 2021 they had argued over Dean wanting more medication than his normal dose. The applicant left the house to go into Moree that day, leaving Dean at home. Mrs Mibus was at that time out of town and no other person had access to the location. While Mr Mibus was out, Dean entered his father’s bedroom, upturned furniture and damaged property, smashing a mirror fixed to a dressing table, and thrown a television set from its normal place onto the dressing table, causing the screen to crack. He also threw two dining chairs belonging to his father from their normal place at the dining table into the kitchen.

58. When the applicant returned home and saw the damage, he contacted police and ambulance for assistance. The visit was recorded on body-worn video, which showed the applicant saying that about two weeks previously (he states that it was two days, not two weeks) Dean had been having an outburst. The applicant had tried to calm him by sitting next to him and rubbing his back, but he swung his arm outwards with a closed fist and struck the applicant in the mouth, causing one of his front teeth to fall out. The tooth was already undergoing dental work and the applicant’s teeth were already loose from osteoporosis.

59. Paramedics assessed Dean and found him to be in good health. Dean then requested his mobile telephone and tried to enter his bedroom to fetch it, closing the door on police. He was arrested and taken into custody at Moree police station. The report concluded that police held fears that “the POI’s [Dean’s] aggressive outbursts may increase and escalate and the elderly frail victim may be seriously injured as a result” (id., 23).

60. The applicant disputed some material parts of the event report. He said there had been no argument between them about Dean wanting more Ritalin than his father was prepared to leave, as he had left home early, while Dean was still asleep. Dean had damaged the bedroom while trying to find more medication, and had damaged the walls in the course of previous incidents of the same kind. In the incident two days previously, Dean had not struck him with a closed fist but had swung his arm outwards and impacted the applicant’s face with the back of his hand.

61. The tooth had been loosened because it was being reconstructed by his dentist. His dentist, Dr S C Montgomery of Inverell, confirmed in his letter of 11 May 2022 that the applicant had attended his surgery on 28 February 2022 for a restoration of tooth 21. The tooth had been compromised because of having had root canal treatment in May-June 2021. Such treatment may save a tooth from further infection but does not prevent the tooth from weakening. A root canal procedure weakens the tooth by reducing the amount of healthy tissue within it (exhibit R1, p 81).

62. The applicant also denied that Dean had been “aggressive” as alleged in the report and explained that he had called 000 because he wanted to obtain medical assistance for him, as his general practitioner had stated that he was in need of professional care. The applicant had urged the police to take Dean to a mental health facility, but as the paramedics’ checks had found nothing wrong with him, they declined to do so and instead took him into custody, against the applicant’s protests.

63. The applicant also outlined Dean’s mental health history that had begun after he was unfairly punished at school for speaking up in defence of other pupils who had been wrongly accused of transgressions. He also stated that Dean had voluntarily stopped using Ritalin and was much better for it.

64. I have viewed the body-worn video footage of the police interview with Dean and the applicant following the incident of 12 July 2021 (part exhibit R1). It shows that almost the whole of the interview took place in a calm and reasonably courteous manner on both sides, except for a period of about 30 seconds when Dean became obstreperous when police sought to follow him into his bedroom when he wanted to obtain his mobile telephone from his room. He closed the back door when police were entering and became irritated, saying that he ought to be able to go into his own room to collect his phone. He did not appear to be violent, however, and promptly and repeatedly apologized for closing the door and becoming heated. One could not in any general sense describe his manner as aggressive, and in that respect the event report may have overstated the position somewhat.

65. Dean is at present living with his mother and visits his father from time to time. It is possible that in the future he may return to live with him.

The public interest

66. The respondent’s case for refusal is also that it is not in the public interest for the applicant to hold a licence, within the meaning of s 11(7). The “public interest” factor allows a consideration of issues going beyond the character of the applicant to be taken into account. They may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16.

67. The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety. The tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The applicant’s personal interest in retaining his licence is subordinate to the public interest in ensuring public safety.

68. As the Court of Appeal observed in Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368, [1], the power to grant an application under the Firearms Act places significant emphasis upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant. Similarly, in Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 the tribunal stressed that public safety is to be given paramount consideration.

69. Tribunal decisions have pointed out that the question of potential risk to public safety is not to be applied in an absolute manner, 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, [64] – [66] 66].

70. Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that “In determining this issue it is my view that 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”. Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74].

71. The respondent submitted that the tribunal was required to look at the applicant’s conduct as a whole, including potential future conduct. In that regard, past conduct of the applicant was a significant guide in assessing likely future conduct: Ford, [59]. (Presumably it is Dean’s conduct, not that of the applicant, that is meant.) The respondent also contended that it was not in the public interest for the applicant to hold a licence for the reasons previously outlined in relation to s 11(4)(a).

Evaluation

72. The respondent accepts that the applicant has an unblemished record in relation to firearms use and storage over 60 years. The concern is not about him, but about his son. The tribunal made it clear in Tolley that where public safety is concerned, “there is no basis for differentiating between conduct of the Applicant themselves and conduct of another which may impact on public safety in the context of a firearms licence” (at [31]).

73. Dean Mibus is a man aged 31 who is currently on a disability pension, though he does occasionally work in the club environment. He has never held a firearms licence, has no interest in obtaining one and is not interested in shooting at all. He has no record of violence, or threatened violence against others. He does, however, have a record of attempting or threatening self-harm and of damaging property.

74. He also has a record of mental health problems. The fact sheet for his marijuana cultivating charge dated 1 February 2021 reports that when asked why he grew the plants, he said “For medicine, for myself. I struggle with depression and anxiety and I have had a history of mental health…. This is how I cope. I don’t drink often, I don’t like to drink, so I prefer to have a smoke and that what I like to smoke” (id., 27).

75. The applicant states that Dean’s mental health problems were triggered by harsh and unfair treatment he received at school, which led him to receive treatment for PTSD, depression and anxiety from a psychiatrist, a psychologist and currently from a counsellor. No reports or other advice from those persons are in evidence before the tribunal.

76. The applicant also related that Dean had been prescribed a number of different psychotropic medications over the years, all of which, especially Ritalin, had carried side-effects that were worse than the original disorder. He was now no longer taking Ritalin and was much better for it. The fears expressed by police on 26 August 2021 that Dean’s “aggressive outbursts may increase and escalate and the elderly frail victim may be seriously injured as a result” (id., 23) have proved unfounded.

77. The applicant’s evidence before the tribunal was particularly open and frank. In cross-examination he freely and candidly described the earlier incidents of attempted or threatened self-harm and Dean’s seeking to take doses of prescribed medications exceeding the directed amount. As Ms McMahon correctly pointed out, that information had not previously been available and actually aggravated the picture of Dean’s mental health history.

72. In cases such as this involving the mental health of an applicant or of a person residing with him or her, it is common for applicants to adduce recent evidence from a mental health professional attesting to their fitness to possess and control firearms or concluding that the other person in the domestic arrangement will not impair the applicant’s safe control over firearms. There is no such evidence in the present case and normally that would weigh heavily in favour of affirming the reviewable decision. It may be relevant, however, that the applicant prepared and presented his case without any legal assistance and thus might not have been aware of the kind of evidence that would be likely to assist his case.

73. More importantly, the frankness and candour of the applicant’s evidence lead to the conclusion that his description of Dean’s treatment history, his evolving behaviour over the years and his improvement in recent times can be accepted. Thus I accept that Dean is no longer using medications (whether in accordance with medical directions or not) that lead to outbursts such as that on 12 July 2021 and that his condition has substantially ameliorated as a result.

74. The respondent expressed a concern that were Dean to return to live with his father, he might seek to overpower him and obtain the key to the gun safe in order to have access to the contents. The applicant pointed out, however, that Dean had been living with him for 15 to 18 years and had never attempted to overpower him, even when he was going through his most volatile periods. Nor had he ever attempted to persuade his father, or even asked him, to make a firearm available to him. He has no record of violence or of threatening violence towards others, nor does he have any criminal associations. He has a particularly close relationship with his father, who takes a close and active interest in his welfare.

75. Two references concerning Dean, though rather old, are consistent with the other evidence. Ms Julie Rushby, manager of Moree Police and Community Youth Club wrote in October 2007 (exhibit R1, p 83) that Dean had been a valued member of the club for over five years, during which time he had represented the club at state and international levels for martial arts, at which he excelled. In 2006 he won the club’s Young Person of the Year award for his efforts in martial arts and in representing the PCYC. He had been a great ambassador for the club over the years.

76. Miss Margaret Gray was Dean’s Year 3 teacher and found him to be a very cooperative and diligent student. He completed his work and was always willing to participate in class activities. He was very friendly and got on well with other students. Mr and Mrs Mibus were dedicated parents who always had his best interests at heart. One very important characteristic was that Dean is very truthful. He had never bullied or hurt anyone and had always supported anyone who needed help (id., 82). Again, Miss Gray’s comments related to an earlier period in Dean’s life, but they portray a developing personality that was helpful, truthful and non-aggressive.

77. The applicant pointed out that the ADVO issued against Dean on 24 January 2022 for the protection of the applicant was the subject of an early revocation on 5 September 2022 in Moree Local Court, with the support of local police. The respondent countered that the test for revocation of an ADVO is different from that in issue in the present case, but it is unlikely that the revocation would have been granted if there had been any significant cause to believe that he might engage in violent or threatening conduct towards his elderly father.

78. In Tolley the tribunal upheld a condition on the applicant’s licence barring him from storing firearms at home. His son had a substantial criminal record and a number of criminal associates and the tribunal thought there was a risk to public safety by the existence of firearms on premises where the son and his associates might be aware they were present (at [38]). In this case the parties are at one in submitting, though for different reasons, that such a condition would be inappropriate. For the reasons set out above I find, however, that there is no reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the fact that his son visits him at home and may return to live there. The respondent’s submission based on s 11(4)(a) therefore fails.

79. As regards the public interest, the respondent submitted that looking at the applicant’s (more particularly his son’s) conduct as a whole, including potential future conduct, it was not in the public interest for the applicant to hold a licence for the reasons advanced in connexion with s 11(4)(a).

80. Subject to public safety, it is in the public interest for law-abiding farmers and graziers to have access to long arms for the protection of the environment and of primary industry. The applicant is a wheat farmer and his operations have suffered from the depredations of wild pigs, foxes and other ferals and pests. In light of all the evidence I conclude that there would be no real or appreciable risk to public safety, as that concept is understood in Webb, if a firearms licence were issued to the applicant and that the discretion under s 11(7) should be exercised in the applicant’s favour. The decision under review should be set aside.

Orders

1. Decision under review set aside.

2. A category ABC firearms licence is to be issued to the applicant.

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I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar

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: 04 August 2023