Mikhail v Commissioner of Police

[2022] NSWCATAD 73

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Mikhail v Commissioner of Police [2022] NSWCATAD 73

Hearing dates:

21 December 2021, 24 February 2022

Date of orders:

4 March 2022

Decision date:

04 March 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Emeritus Prof G D Walker, Senior Member

Decision:

Decision under review affirmed.

Catchwords:

LICENSING – firearms – licence refusal – public interest – juvenile offences – mental health

Legislation Cited:

Administrative Decisions Review Act (NSW)

Civil and Administrative Tribunal Act (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;

Director-General Transport New South Wales v AIC (GD) NSWADT [2011] NSWADT AP 6;

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60;

Hailes v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 37;

Hook v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 25;

Jameson v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 250;

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;

McDonald v Director-General, Social Services (1984) FCA 57, (1984) 1 FCR 354;

Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 9;

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

Prevetera v Commissioner of Police [2021] NSWCATAD 133;

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

Category:

Principal judgment

Parties:

George Mikhail (Applicant)
Commissioner of Police (Respondent)

Representation:

Solicitors:
T Tanyous (Applicant)
Bartier Perry (Respondent)

File Number(s):

2021/00234574

Publication restriction:

None

REASONS FOR DECISION

1. The applicant Mr George Mikhail applied to this tribunal on 17 August 2021 seeking a review of a decision by the respondent to refuse to issue a category AB firearms licence to him on the ground that it was not in the public interest that he have a licence, within the meaning of s 11(7) of the Firearms Act 1996.

2. The refusal letter, dated 16 April 2021 (part exhibit R1), noted that on 7 December 2015 at Parramatta’s Children’s Court, the applicant had been found guilty of possessing an unauthorized pistol and of possessing an unauthorized prohibited firearm. No conviction was recorded and the applicant was placed on a bond for 12 months. The items in question were actually toy pistols that had been spray-painted and altered to resemble real firearms.

3. The refusal letter also took into consideration that while in custody on 4 September 2015 the applicant made an admission to suffering from depression. It stated that the Firearms Registry had to be guided by expert advice regarding his soundness of mind to possess and use firearms to ensure public safety, including the safety of the applicant himself. An internal review was applied for but as it was not determined within the prescribed time, the matter proceeded direct to this tribunal.

4. The application came on for hearing on 21 December 2021 and was adjourned part heard to 24 February 2022.

Applicable legislation

5. Section 11 of the Firearms Act creates a number of general restrictions on the issue of firearms licences. Section 11(7) of the Act provides that, despite any other provision of s 11, the Commissioner may refuse to issue a licence if the Commissioner considers that the issue of a licence would be contrary to the public interest.

6. The issue in this application is thus whether the issue of a firearms licence to the applicant would be contrary to the public interest.

Respondent’s evidence

7. The respondent did not call any oral evidence but relied on written material, including the s 58 documents (exhibit R1) and a signed statement with annexures, dated 17 November 2021, by Senior Constable Gurneet Grewal (exhibit R2). It may be noted that the documentary material in this matter was in a somewhat disorganized state as the papers had somehow become admixed with those for another matter (letter Bartier Perry to NCAT, 3 December 2021).

8. S/C Grewal stated inter alia that on 4 September 2015 he attended Parramatta Marist Brothers High School, where in the course of a conversation the applicant told him that in about March or April 2015 he had made a bomb using a deodorant can, barbecue secures, a candle, sparklers, a cigarette lighter, the pen and a few tissue papers. He exploded it in a park, where it made a noise sufficiently loud to cause one neighbour to come out of his house. The applicant recorded and took photographs of the explosion, but later deleted the video.

9. He later showed the photographs to Mr Stefano C****, a friend and fellow pupil, who asked him to make a bomb so he could detonate it in the car park of the high school and cause damage to cars and windows. The applicant also told Mr C**** that he could make the bomb but needed dynamite sticks and other items. Mr C**** offered him money in return for a bomb, and also told him that he was interested in joining ISIS, showing him pictures on his mobile telephone, which included photographs of the ISIS flag and people who had been decapitated. He also told the applicant that he wanted to rob a service station to steal cash if that meant the applicant could make a bomb for him.

10. In June 2015 the applicant made another bomb using the same materials as before and gave it to his friend, Mr Joseph A**** and in August 2015 made another bomb which he still had in his possession. He also altered some toy guns he had purchased to make them appear real by making a hole in the front to resemble a muzzle and by using spray paint to change the guns’ appearance.

11. A search warrant was later obtained, following which a property seizure form was prepared by the officers who executed the warrant (part exhibit A2). It included the following items, with photographs of them:

• an aerosol deodorant can with two sparklers in a tin can.

• a black toy firearm,

• a black toy pistol,

• a black toy revolver,

• a small resealable bag containing rice with the word “Explosive” written on it,

• a black handmade replica explosive device,

• a home-made rocket,

• a wooden sword, and

• a number of drawings depicting weapons and warlike scenes.

12. In addition, a set of knuckle dusters was seized, but it was later found to belong to the applicant’s father.

13. The respondent also tendered some medical records relating to the applicant, including two letters from a paediatrician, Dr Joseph Macdessi, who knew the family and had met the applicant. The first, addressed to the year 11 adviser at Parramatta Marist Brothers High School, is dated 5 February 2015, several months before the incident that gave rise to the Children’s Court appearance. It states that the applicant was enjoying his rapport with his teachers and colleagues and generally seemed to have a sensible and healthy attitude.

14. He was keen to help harness his focus and concentration more effectively, however, as he found difficulty in classrooms and in homework sessions. Dr Macdessi advised some appropriate testing and treatment to help him with focus, concentration and applicability, as well as completion and efficiency. “More importantly,”, the letter continued, “George himself has asked for some assistance in planning not only his study timetable and homework timetable but also in planning for assignments and assessment tasks and exams”.

15. The second letter is dated 17 September 2015, some two weeks after the applicant was arrested. It expresses surprise and disappointment about the incident but notes the applicant’s explanation that he did not assemble the aerosol can and flame mechanism with the intent of causing harm or threatening the safety of others, and was very remorseful. Dr Macdessi said the only input he could add was that it all occurred before George received his initiation of medication for his attention deficit hyperactivity disorder. “He does have a tendency towards impulsive actions and although this incident seemed premeditated and planned, it may have been qualified also by impulse that did not allow him to see through the consequences clearly in his mind”. He did not believe the applicant had a significant amount of impulse that required curtailing with medication.

16. On 1 February 2016, after the court hearing, the applicant’s general practitioner, Dr Elham Nashed, referred the applicant to a consultant psychiatrist, Dr Samir Benjamin, in connexion with “ADHD and aggressive behaviour associated with poor communication at home”. Dr Benjamin’s first report, dated 5 February 2016, outlined the applicant’s behavioural history. The applicant had told him that he had been in trouble the previous year after lighting fires in the public parks, videotaping them and uploading them on YouTube.

17. He mentioned the modified toy guns, his 12-month bond and his expulsion from Marist Brothers High School. He said he enjoyed lighting fires in public places and also in his own backyard, and had improvised ways to start a fire using spray cans. He also spoke of oppositional and defiant behaviour at home and school, and that he threw objects at pupils and also damaged their property. He became angry when he did not get his way. The report noted that a paediatrician early the previous year had prescribed Ritalin LA to deal with oppositional and defiant behaviour at home and at school, as to which the applicant had said it was helpful in calming him down and stopping him from acting silly.

18. His father confirmed that history and felt that George was significantly better while on medication. He stopped taking Ritalin, however, because although his explosive temperament improved as he grew older, his behaviour became significantly worse, and he said he felt more anxious after taking Ritalin, which made him stop taking it. Dr Benjamin concluded that the applicant’s presentation was consistent with the diagnosis of attention deficit disorder, and that a differential diagnosis of conduct disorder should also be considered. He also prescribed a different medication, Vyanase 30 mg.

19. Dr Benjamin followed that report on 4 March 2016 with a review recording an improvement in the applicant’s behaviour, concentration and attention since he had started Vyanase the previous month. His father also reported improvement in his study and relationships with his siblings and other students at school. There had been no fire-setting incidents during the past month.

20. In a further review dated 29 August 2016, Dr Benjamin reported improvement in the applicant’s concentration, attention and ability to study. He had completed his HSC trial examination and felt that he had done well, but believed that he lost concentration and got tired by the afternoon.

Applicant’s evidence

21. The applicant did not give oral evidence but relied on a signed statement dated 21 October 2021 (part exhibit A3) in which he wrote inter alia that he understood the responsibilities of firearms ownership and was ready to accept and uphold them. He fully understood the laws in regard to firearms and safe keeping and was prepared to cooperate with authorities in that regard.

22. In relation to the offences to which he pleaded guilty at Parramatta Children’s Court on 6 December 2016, he said that he had since then been an upright citizen and had not committed any serious offences. Being young at the time of the offence, he had a very limited understanding of the law and did not realize that it was an offence to alter a toy to resemble an actual firearm. From his perspective, he was simply imitating what he saw in video games and on television. It was purely for fun, there was no malice behind it and the toys were seen and treated as just that, not as real firearms. In hindsight, he realized that he had made careless and foolish decisions, which he deeply regretted to this day. As he is now mature enough to understand the gravity of the situation, he vows never to alter any object to resemble a real firearm ever again. He was extremely remorseful for his actions and had sincerely learned an important lesson.

23. He believed he had learned from his mistakes of the past and had come a long way since, in a positive light. That was evident from the fact that he had been able to keep several jobs throughout the past six years, completing two TAFE courses in health and is on the verge of completing a university degree in nursing. He also serves the community in a variety of ways, as shown in the character reference by Mr Michael Isaac. Further, he feels that his personality and maturity have significantly improved since that time. He feels more control over his actions and is taking steps to build himself for the future.

24. Recently he had acquired a psychologist’s report to assess his current “risk of depression” as mentioned by the adjudicator in the letter of refusal. As a result, in the assessment made by Michael Kruger-Davis, his conclusion stated that the applicant is of “sound mind” and is able to “exercise rational judgment” over his actions, all in all which closely resembled his statement in the previous paragraphs.

25. The applicant also tendered a letter of apology dated 25 June 2021 (part exhibit A3) in which he stated that when he was 15 years old, he painted two toy pistols to resemble real pistols. At the time he was completely unaware that he was breaking the law. He was boasting to his friend at school that he had two pistols, although he did not tell him that they were real, and by early September 2015 it was reported to the principal that he had these firearms. Police were informed and they came to his house and found the two pistols he was charged with possessing two imitation pistols. He pleaded guilty and had no conviction recorded.

26. He wished to apologize for not comprehending the law. He was very remorseful and now knows that what he did was not allowed and he is terribly sorry for wasting the police and the court’s time in having to deal with that. He understands the high standards required of firearms licence holders and vows never to reoffend. He was now are currently preparing to work as a registered nurse. He was not required for cross-examination.

27. The applicant also tendered a reference from Mr Michael Isaac, director of Trinity Landscape and Civil, dated 4 June 2021 (part exhibit A3) which states that Mr Isaac had personally known the applicant for over 10 years through their Coptic Orthodox Church community. George had discussed the refusal letter with him and had expressed deep remorse for what had occurred in 2015. That was completely out of character as Mr Isaac had known George to be a great, responsible, trustworthy, reliable, honest, kind and hard-working young adult. He is a valuable member of the church community and attends church regularly. He is involved with many wonderful services within the church and is always the first to offer assistance to those who need it.

28. Mr Michael Kruger-Davis is a registered psychologist and a former principal psychologist with New South Wales Department of Education, and also works in private practice. Having been asked to assess the applicant’s current mental status, he prepared a detailed 14-page report dated 30 June 2021 (exhibit A2). It sets out a detailed personal history, an assessment of his mental state including details of any mental or physical health condition and his level of insight into that condition, a current suicide risk assessment and an opinion regarding the applicant’s fitness and propriety to possess and use firearms, and the reason for coming to that conclusion.

29. The witness had administered a Beck depression inventory, a Kessler psychological distress scale K10, a depression, anxiety and stress scale DASS 42 and a Beck anxiety scale BAI. The applicant’s results for all tests were within normal limits. Further, on the AISRAP suicidal risk assessment protocol, he would be considered a very low risk. There was no indication of an “at risk mental state”. He did not hold fears for the future, any level of hostility or depression or psychotic symptoms.

30. In conclusion, Mr Kruger-Davis stated that the applicant did not suffer from any mental illness, depression or anxiety, personality disorder or substance abuse disorder. He had no mental illness or condition listed in the DSM-5 (Diagnostic and Statistical Manual of Mental Disorders, 5th edition) and had not been diagnosed with any mental illness, personality disorder or substance abuse disorder in the past. He had no diagnosed condition or impairment that would impact on his fitness to possess or use firearms, nor was he taking any medication that would have an adverse effect on his alertness. He had a number of protective factors that will support his overall well-being (employment, study, religious beliefs, cultural identity, membership of organizations etc.). No mental health impairment or condition currently exists, and while the future is difficult to predict, it would require significant changes that are not currently indicated.

31. He is of sound mind and makes rational judgments. Although in 2014 he purchased toy guns believing that to be acceptable and not knowing that they would be considered prohibited firearms, a similar decision is very unlikely to occur again.

32. In oral evidence at the hearing Mr Kruger-Davis agreed that he had not treated the applicant, but had assessed him. He found no issue requiring treatment although he did offer some minor counselling. The interviews had been conducted by telephone, which is considered reasonably acceptable, and is used by organizations such as Lifeline (that is recognized on Medicare). This happened during the lockdown period, so Mr Kruger-Davis was not travelling. At that time he had been unaware of the previous diagnosis of ADHD and of some aspects of the applicant’s conduct problems.

33. The witness reiterated the salient points of exhibit A2, stating that the applicant suffered from no condition or disorder recognized under the DSM-5 and was not in need of any medication. He was not a suicide risk and had a very low profile in that regard. He suffered from no condition that would impact on his handling of firearms, and no cause to suspect any lack of physical control, especially given that he now drives a car. While he could not predict the future, there was no indication that anything similar to the 2015 incident would recur, although it could depend on, for example, any changes in his circumstances such as alcohol use or indulgence in drugs. In general, however, there was little risk of a relapse.

34. The witness referred to the work of Piaget on teenage mind development. He had described changes in cognitive conduct that occur with age. Adolescent males could have problems with rationality and in the control of impulses, as the prefrontal cortex was not fully developed until the age of 25.

35. The applicant had said that he could not understand why the school principal had been sufficiently worried about his behaviour to report it, but that showed that he did not understand the mandatory reporting requirements at schools. That, however, would be quite common. All in all, he was very unlikely to present a threat to public safety. He was a different person now, studying nursing and showing better decision-making, and an absence of depression or of alcohol or drug problems.

36. Cross-examined by Mr Mattson on behalf of the respondent, the witness agreed that he had not seen the applicant’s past medical records, but knew about the offences for which he had been charged, although not about the bomb or the friend who was interested in ISIS. If he had known about those and similar matters, he might have told the applicant that he could not help him. He had proceeded on the basis of what he had been told and was inquiring into mental disorders and depression, not into bomb-making. The drawings that had been seized under the search warrant were of a kind that was often seen in schools, usually the work of boys who are bored.

21. ADHD was treated as a child disorder in the DSM-5, but some adults had attention problems also. They could affect impulse control but could also make a person more risk-averse.

Applicant’s submissions

38. The applicant adopted his written submissions dated 2 July 2021 in which he contended inter alia that the psychologist’s report had cleared him of any mental health concerns. His offences had occurred when he was 15 years of age, and Mr Kruger-Davis had provided some insight into the brain development of teenagers. In Prevetera v Commissioner of Police [2021] NSWCATAD 133, [46] – [49], the tribunal had said that “It is not possible to predict with absolute certainty where the risk lies in any particular situation. As has been frequently noted, the Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. The Tribunal must make decisions that are consistent with the need to reduce any risks to a minimum”. The tribunal thought that, if there was a risk, it was at the lowest end of the scale, and did not constitute any real and appreciable risk that the applicant would not comply with firearms legislation if his licence were returned.

39. That case had involved extensive neighbour disputes over a long period, with reports of violence and threats, although many of the reports were unsubstantiated. At the time Mr Mikhail committed the firearms offences, he was 15 years old with limited knowledge of firearms legislation and was not a licence holder. He was in a similar position as the applicant in Prevatera.

40. In Jameson v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 25, and in Hook v Commissioner of Police [2020] NSWCATAD 250 the relevant decisions had been set aside in view of the applicant’s clear expressions of remorse and in light of supportive psychological reports, even though Jameson involved a far more serious breach of the Firearms Act, where a number of handguns were stolen through the applicant’s improper handling. In Hook the most serious offending was 13 years prior, and although there had been some reports of other minor misdemeanours, nothing had been substantiated. The psychological report explained that the change in the applicant’s behaviour was most likely due “to the maturation of his prefrontal cortex and his ability to consider the consequences of his actions. He is able to regulate his behaviour and think about his thinking (metacognition). That brain maturation is the reason that Mr Hook is unlikely to reoffend”.

41. The tribunal had concluded: “The applicant is now aged 31 and his worst infringements occurred when he was 18. On the basis of all the evidence, I conclude that the applicant, if issued with a firearms licence, is now unlikely to present any significant, noticeable or realistic danger to public safety”. The applicant submitted that he should be given the benefit of the doubt, as Montgomery SM had done in Prevetera.

42. In oral submissions at the hearing, Mr Tanyous on behalf of the applicant reiterated those points and pointed out that while the refusal was partly based on the possibility of depression, the psychologist’s report had made it clear that the applicant was not suffering from that condition.

43. His breach of the law had occurred when he was 16 and knew little about his Firearms Act. He had told the psychologist only about the offences that had been listed on the respondent’s notice of refusal, because he had thought that was all he needed to report. He was now apologetic and had almost completed a nursing degree, showing that he was of good character and responsible citizen. There had been no later offences and he deserved the benefit of the doubt. He wanted to change his life, and the present proceedings had reinvigorated his feelings of remorse.

Consideration

44. 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.

45. 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). 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.

46. 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(3) states that a licence must not be issued unless the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace. Section 11(4)(c) also provides that a licence must not be issued 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 intemperate habits or being of unsound mind.

47. 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.

48. The ground on which the respondent argues for licence refusal in this case is that it is not in the public interest for the applicant to hold a licence, within the meaning of s 11(7).

49. 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.

50. 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.

51. 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.

52. 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].

53. 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].

54. The evidence relied on by the respondent in support of licence refusal falls into two parts, the first being his having pleaded guilty in 2015 to two firearms offences, possessing an unauthorized pistol and possessing an unauthorized prohibited firearm. He was placed on a 12-month bond for those offences with no conviction being recorded. The respondent pointed out that while he was aged 16 at the time of those proceedings, he was still relatively young at 22 years of age.

55. The circumstances of those offences had other significant features. By his own admission to police, the applicant had made and detonated explosive devices in a public place, provided or promised to provide such devices to other persons, including a school friend named Stefano C**** who had expressed an interest in detonating it at their high school, had made other devices for the purposes of exploding them and possessed drawings depicting weapons and scenes of war and violence (exhibit R2, GW-1).

56. Stefano had also offered him money to make a bomb, which the former contemplated using for the purpose of robbing a service station, and expressed an interest in ISIS, showing the applicant grisly photographs apparently depicting the results of ISIS atrocities.

57. The applicant had also made other devices for the purpose of exploding them and had made drawings depicting weapons, scenes of war and violence.

58. The respondent also relied on the fact that in September 2015, the applicant was being medically treated for ADHD and had been taking medication for alertness. The police recorded him as saying that he thought he was suffering from depression but was not sure. The respondent was also critical of the psychologist’s report by Mr Michael Kruger-Davis (exhibit A2), saying that the author was not the applicant’s treating psychologist and came to his conclusions without having met with the applicant, having conducted only three telephone consultations. Nor did he obtain a full history from the applicant or provide substantial details about the applicant’s medical circumstances or treatment.

59. Also relevant, the respondent submitted, was the fact that when discussing his 2015 offences with the psychologist in 2021, he said that he could never understand why the principal was worried, because he had never taken the replica guns to school, nor did he ever use them to threaten anyone. He was not sure “what anyone was worried about, [he] kept them at home and didn’t threaten anyone with them” (exhibit R3, p 26). That comment, it was argued, demonstrated that he still possessed no full and appropriate understanding or appreciation of his actions.

60. The applicant’s position in relation to the 2015 charges was essentially that they arose when the applicant was 15 years old and he was now 22, is genuinely remorseful and had greatly matured. An analogy was drawn with Hook, where the following passage appears (at [109] – [110]:

The psychologist’s report from Mr Kruger-Davis dated 28 August 2020 has been outlined above. Its main conclusions are that the applicant is genuinely remorseful for his actions in 2008. He understands the consequences of his acts then and would be very unlikely to behave in a similar manner now. According to himself and the referees, he is a changed man. He is involved in community activities such as the RFS, holds down a job as a valued employee and is in a substantial relationship.

The change is most likely due, the report states, to the maturation of his prefrontal cortex and his ability to consider the consequences of his actions. He is able to regulate his behaviour and think about his thinking (metacognition): “That brain maturation is the reason that Mr Hook is unlikely to reoffend”. He has been able to demonstrate that over the last 10 years he has been able to exercise rational control and willpower while in charge of a motor vehicle. There are no indications that he would not be able to exercise the same responsibility to maintain public safety while in possession of, or using, a firearm.

61. The same psychologist put forward a similar explanation in his report in the present case (exhibit A2, p 4) and in his oral evidence:

To think and act rationally, we rely on the part of our brain known as the cerebral cortex and in particular the pre-frontal cortex. This is the part of the brain that manages our executive function. Our executive function involves our ability to plan and organise, shift from one task to another, initiate tasks, regulate our behaviour, think about our thinking and weigh out the consequences of our actions. The prefrontal cortex is usually underdeveloped in teenagers and most males do not have an appropriately developed prefrontal cortex until about 25 years of age”.

62. Also consistent with that line of thinking is Hailes v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 37, [84] (a decision of mine, but as far as I know it has not been criticized) in which it was said that such findings “are also consistent with accepted criminological studies that have long shown that the propensity for delinquency declines sharply after the age of 25 (D. Weatherburn, S. Rahman, The Vanishing Criminal: Causes of Decline in Australia’s Crime Rate, Melbourne University Press 2021, Ch. 5). The applicant’s worst offences occurred when he was aged between 18 and 24, and he is now 44”. The decision under review was set aside.

63. The applicant is now aged 22 and has not come under adverse notice since the 2015 offences. He has no convictions, including for traffic breaches. He presents himself as being virtually a different person from the one who committed the Firearms Act contraventions. He has a supportive character reference from Mr Isaac, who speaks highly of his character and his participation and work as a member of the Coptic Christian church.

64. He also tendered a detailed written apology. In his evidence he said that since the 2015 offences he had held six or seven employee positions, but did not identify his employers or the kind of work involved. He also stated that he is on the verge of completing a university course in nursing. Nursing is, of course, a highly responsible profession requiring concentration and discipline. It might have been relevant, however, to name the university where he is studying and offer some documentary evidence of his academic record and current academic standing.

65. The respondent expressed concern about the comment the applicant made to Mr Kruger-Davis about how he never understood why the principal had been worried about the toy pistols as he had never taken them to school and had never threatened anyone with them. Like Mr Kruger-Davis, I view that as little more than an indication of an unawareness about school reporting procedures and not as prefiguring any renewal of amateur bomb-making or similar activities. My reservations in this case arise, rather, from certain gaps or shortcomings in the evidence relating to the applicant’s mental health status.

66. Mr Kruger-Davis’s report (exhibit A2) reaches conclusions that are uniformly positive. He finds that the applicant is of sound mind and does not currently present with depression, anxiety or any other mental illness, personality disorder or substance abuse disorder. He does not take any medication, drink alcohol excessively or take medication that would affect his ability to possess and use firearms. He carried out his good behaviour bond without incident and holds no criminal associations. He does not present a suicide risk and there are currently no factors that would indicate that he would be unable to exercise willpower and continuous control if he were to possess and use firearms. He was genuinely remorseful for the actions in 2015 when he was a minor.

67. There is no reason to think that Mr Kruger-Davis’s conclusions were anything other than soundly based, in light of the evidence he had before him. But the applicant had a history of which the psychologist had not been made aware, including, fire-setting, bomb-making, aggression towards fellow-pupils at school and his association with Stefano C****.

68. The applicant’s paediatrician, Dr Macdessi, in his report dated 17 September 2015 expressed surprise and disappointment about the incident with the detonation of the aerosol can, and thought it might have something to do with the fact that it occurred before he began his medication for his ADHD, adding that “He does have a tendency towards impulsive actions and although this incident seemed premeditated and planned, it may have been qualified also by impulse that did not allow him to see through the consequences clearly in his mind”.

69. The applicant was then referred to a psychiatrist, Dr Samir Benjamin, following his being placed on a bond as a result of his charges under the Firearms Act. In his report dated 5 February 2016, Dr Benjamin noted the applicant’s history of aggression and displays of “explosive temperament” and diagnosed attention deficit disorder, stating that “The differential diagnosis of Conduct Disorder should also be considered”. The applicant’s medication was also changed to Vyanise.

70. In a follow-up consultation on 4 March 2016, Dr Benjamin noted improvement in his behaviour, concentration and attention since he had started on Vyanise. His study and relationships with his siblings and other pupils at school had improved. There had been no fire-setting incidents during the previous month. At that time, the applicant was also under treatment by Ms Hanna Salib, of Effective Counselling and Social Work Services, of Luddenham (exhibit R3, p 95). In making his evaluation, Mr Kruger-Davis had not been made aware of any of that material

71. Equally significant is the fact that the psychologist was not informed about certain important aspects of the applicant’s background. In cross-examination he acknowledged that at the time of making his assessment he had not known about the deodorant can bomb or the other bomb the applicant had fashioned. Nor did he know about the applicant’s school friend Stefano C**** and his unwholesome interest in ISIS and armed robbery, and he agreed that the applicant’s failure to mention those matters could reveal a lack of insight into his behaviour. The applicant maintained that he had thought he only had to tell the psychologist about the matters referred to in the respondent’s refusal letter. While that could be true, it appears to have influenced the psychologist’s report, as indicated by his concession that it could have indicated a lack of insight.

72. Mr Kruger-Davis also said in cross-examination that he was an independent witness and if the applicant had told him about those matters, he might have told the applicant that he could not help him and that he might wish to speak to another psychologist. The obvious conclusion from that is that the psychologist had been asked to advise on the basis of incomplete information and that if he had been aware of the full facts he would not have been able to reach the positive conclusions that he did.

73. Also material was the psychologist’s acknowledgement in oral evidence that while ADHD is regarded as a childhood disorder by the DSM-5, some adults also have attention problems that could affect their impulse control, although the effect could also be to make them more risk-averse. The applicant’s current mental state was entirely satisfactory, but it was difficult to make any firm prediction about how people will behave in the future. The applicant’s situation could change if there were some alteration in his life circumstances, such as the development of alcohol or drug problems.

62. Although there is no burden of proof in such proceedings as these, there do appear to be a few too many gaps in the evidence adduced by the applicant to justify a finding in the applicant’s favour. The evidence does not indicate whether the applicant still has any contact with Stefano C**** or is friendly with any other persons with dubious associations. His work history is devoid of any kind of detail and he does not name the university from which he expects to graduate shortly or offer any documentary evidence about his academic standing or progress. Somewhat unusually for an applicant, he did not give oral evidence.

63. The applicant is currently aged 22 and thus still young, while the successful applicants in Hook and Hailes were 31 and 44 respectively. Age is by no means a decisive criterion in this context, but given the applicant’s rather troubled and relatively recent psychiatric and behavioural history, as well as Mr Kruger-Davis’s somewhat qualified prognosis and especially his assertion that he might not have undertaken to report on the case at all if the applicant had supplied him with the full facts, a tribunal would need further probative evidence before it could conclude that issuing a firearms licence to him would entail no realistic risk to public safety as that concept is explained in Webb. That evidence could include a showing of a substantial time interval since the events of concern. At this stage I am therefore not satisfied that it would not be contrary to the public interest for a licence to be issued to the applicant, and I so find. The decision under review should be affirmed.

Order

1. Decision under review affirmed.

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

Registrar

Decision last updated: 04 March 2022