Moody -v- Commissioner of Police, New South Wales Police

[2002] NSWADT 146

CITATION:	Moody -v- Commisioner of Police, New South Wales Police [2002] NSWADT 146
DIVISION:	General Division
PARTIES:	APPLICANT Frederick Stephen Moody RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	023114
HEARING DATES:	25/07/02
SUBMISSIONS CLOSED:	07/25/2002
DATE OF DECISION:	08/19/2002
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	Firearms Act - firearms licence - revocation of licence or permit - Firearms licence - revocation of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Firearms (General) Regulation 1997 Firearms Act 1996
CASES CITED:	Phegan -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 127 Cleofe -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 2
REPRESENTATION:	APPLICANT In person RESPONDENT D Paterson, solicitor
ORDERS:	The Commissioner’s decision to revoke the applicant’s firearms licence is set aside.

Introduction

1 On 14 April 2002 the Commissioner of Police (the Commissioner) revoked Mr Moody's Category A, B and C firearms licences. These licences enabled Mr Moody to engage in vermin control on his property. The reason for the revocation was that Mr Moody had been found guilty of not keeping firearms safely. He was convicted in the Local Court on 5 February 2001 and fined $500. On appeal to the District Court the conviction was confirmed but the fine was reduced to $250. On 24 May 2002, Mr Moody applied to the Tribunal for a review of the decision to revoke his licence.

Jurisdiction

2 The Tribunal has jurisdiction to determine this matter pursuant to s 75(1)(c) of the Firearms Act 1996 ( Firearms Act ) and s 38 of the Administrative Decisions Tribunal Act 1997 (ADT Act).

Evidence

3 The documentary evidence in this case consisted of the Commissioner’s file, a letter from Mr Moody dated 22 July 2002 including some photographs, and a letter from Mr Geoffrey Knight, Seabreeze Real Estate Company dated 12 July 2002. Mr Moody and his partner Jo Ritchie, gave oral evidence.

4 In relation to the circumstances of the offence, Mr Moody stated that while waiting for a person to come and inspect a computer he had advertised for sale, he took out his firearms from an old padlocked fridge to clean them. When he was still cleaning them he saw a car coming towards his property so he quickly hid the firearms. He asked his partner, Jo Ritchie, to hide one of the rifles. She gave evidence that she put it under a bed in the caravan adjacent to the shed where they were living. When the person inquiring about the computer had left, she told Mr Moody where she had put it. Mr Moody put two of the firearms under a blanket on a stretcher in the shed and one underneath a baby’s playpen towards the back of the shed.

5 Mr Moody said that he hid the firearms because he didn’t like people to know that he had firearms on his property. He said it would have taken him at least four minutes to put the firearms back in the cabinet because it had five padlocks.

6 Within minutes of the man inquiring about the computer leaving, Mr Moody saw another car coming towards his property. Two police officers arrived and asked Mr Moody about the whereabouts of a neighbour. Before leaving they asked Mr Moody if he had any firearms on the property. Mr Moody retrieved the firearms from the places he and his partner had hidden them earlier.

7 Mr Moody said that the police officers walked past the firearms cleaning kit which was on the table. He didn’t tell them that he had been in the process of cleaning the firearms when the man inquiring about the computer had called. According to Mr Moody, the police officers should have noticed the cleaning equipment but they were not interested.

8 According to the police fact sheet and the statement of Senior Constable Corbett, police officers visited Mr Moody’s property one evening. When police inquired about whether Mr Moody owned any firearms Mr Moody told them he had four rifles. Mr Moody said that he kept the firearms stored in an old fridge in the shed where he was living.

9 At the request of police officers, Mr Moody went to a caravan and came out with a rifle. Mr Moody told the police officers that the rifle was under a bed in the caravan. Mr Moody then retrieved three more rifles, two from under a blanket on a camping stretcher near the entrance to the shed and one from behind a baby’s play pen towards the back of the shed. Senior Constable Corbett said that he did not see an appropriate gun cabinet but he does not remember looking for one or requesting to see one. He also said that Mr Moody did not draw his attention to any gun cleaning equipment or claim to be cleaning any firearms when he was there.

10 Mr Moody said that he has held a firearms licence for 30 years and has never had any problems. He lives on a farm 30 miles from town at the end of a “no through road” so there is no passing traffic and therefore “no danger to anyone.”

11 Mr Moody said that he has raised chickens and ducks on his property and has a big problem with predators such as wild dogs, feral cats and foxes. This was confirmed by photographs and evidence from Mr Geoffrey Knight of Seabreeze Real Estate Company.

Relevant legislation

12 The Firearms Act sets up a scheme for licensing people to possess and use firearms. Section 24(2) sets out the grounds on which the Commissioner may revoke a licence. The provisions in bold are those relied on by the Commissioner in this case.

(2) A licence may be revoked:
(a) for any reason for which the licensee would be required to be refused a licence of the same kind, or

(b) if the licensee:


(i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or

(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or

(iii) contravenes any condition of the licence, or


(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or

(d) for any other reason prescribed by the regulations.

13 For the purposes of s 24(2)(a), one of the reasons that the Commissioner would be required not to issue a licence would be if the person:
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. (See s 11(5)(b) of the Firearms Act.)
14 Section 5 of the Firearms (General) Regulation 1997 prescribes the following offences:
An offence relating to the possession or use of a firearm, or any other weapon, 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).

15 Consequently since Mr Moody has been convicted of an offence relating to the possession or use of a firearm (not keep firearms safely) any application by him for a new firearms licence would have to be refused for the period of 10 years from the conviction. However, under s 24(1)(b) the Commissioner still has a discretion to revoke or not to revoke Mr Moody’s licence in circumstances where he will be refused a licence once his current licence expires.

16 The second basis for the Commissioner’s decision was that under s 24(2)(b)(ii) he has contravened a provision of the Firearms Act. Again, the Commissioner has a discretion to revoke, or not to revoke a licence in this situation.

17 Part 4 of the Firearms Act provides for the safekeeping of firearms. The general requirements are set out in s 39 which relevantly provides that a person who possesses a firearm must take all reasonable precautions to ensure:

(a) its safe keeping, and

(b) that it is not stolen or lost, and

(c) that it does not come into the possession of a person who is not authorised to possess the firearm.

18 Under s 40(1) of the Firearms Act:
The holder of a category A or category B licence must comply with the following requirements in respect of any firearm to which the licence applies:

(a) when any such firearm is not actually being used or carried , it must be stored in a locked receptacle of a type approved by the Commissioner and that is constructed of hard wood or steel and not easily penetrable,
Issue

19 The issue for the Tribunal to determine is whether the Commissioner made the correct and preferable decision in revoking Mr Moody's firearms licences on the ground that he has been found guilty of two offences relating to the storage of firearms. Under s 63 of the ADT, the Tribunal must take into account any relevant factual material and any applicable written or unwritten law. The Tribunal may then affirm, vary or set aside the Commissioner's decision.

Findings

20 Mr Moody and his partner gave unchallenged evidence that Mr Moody was cleaning his firearms and hid them when he realised that a person was about to call in to discuss the sale of a computer. The reason he hid them was that he did not like people to know that he had firearms on the property and it would take at least four minutes to lock the firearms back in the cabinet as it had five padlocks. This evidence was not challenged.

Decision and reasons

21 Mr Moody breached s 40(1) of the Firearms Act in relation to storage because his firearms were not stored in a locked receptacle of a type approved by the Commissioner at a time when they were not actually being used or carried.

22 The Firearms Act does not list the factors which a decision maker must take into account when deciding whether to revoke a person's licence. In those circumstances the discretion should be exercised in a way which takes into account all relevant considerations including the principles and objects of the Firearms Act . The principles of the Firearms Act are set out in s 3:

1) The underlying principles of this Act are:
(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and

(b) to improve public safety:


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

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


(c) to facilitate a national approach to the control of firearms.
23 The improvement of public safety by promoting the safe and responsible storage of firearms is identified as one of the underlying principles of the Act. As is made clear from Part 4 of the Firearms Act, Parliament did not leave the manner in which firearms are to be stored to the discretion of licence holders but imposed detailed requirements on all licensees.

24 In the decision of Phegan -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 127 the Tribunal reviewed the decisions it had made in relation to the revocation of licences following breaches of storage requirements. The Tribunal has now made 12 decisions falling within this category. The Tribunal affirmed the Commissioner's decision in nine of those cases and set aside the Commissioner’s decision in three cases. In several cases applicants had recently moved house and had not organised to store their firearms safely in their new location. In general, the Tribunal has not been satisfied that this constitutes sufficient reason to justify setting aside a revocation decision. In one case, Cleofe -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 2, the applicant said he was in a hurry to go out and took the risk of leaving the firearm unlocked. In that case the Tribunal was not satisfied that this explanation justified setting aside the Commissioner’s decision to revoke his licence.

25 The Tribunal concluded in Phegan’s case that for the Tribunal to set aside a revocation decision based on failure to store firearms safely an applicant must show that there are persuasive and relevant considerations which take their matter outside the ordinary case. Relevant considerations include:

· the reason for failing to store the firearm safely;

· the length of time the firearm was not stored safely;

· the potential or real danger posed by failure to store the firearm safely;

· the person’s previous conduct in relation to storage of firearms and any related matter;

· the person’s understanding of the importance of safe storage and the likelihood that firearms will not be stored safely in the future; and

· the reason the person has a firearms licence, keeping in mind that firearms possession and use is a privilege that is conditional on the overriding need to ensure public safety.

26 I accept that Mr Moody did not store his firearms safely for the reasons that he gave in evidence, namely that he did not want people to know he had firearms on the property and he did not have time to put the firearms away in the padlocked fridge before his visitor arrived. These reasons do not justify his failure to store the firearms safely, but they do explain Mr Moody’s actions and, in combination with the other factors mentioned below, take the case outside the ordinary situation where there is no satisfactory explanation for not storing firearms safely.

27 The firearms were unsafely stored for a period of approximately forty-five minutes while the man inquiring about the computer was present and before the police officers arrived. This is a relatively short period of time and I am satisfied that Mr Moody would have locked the firearms away that evening.

28 Mr Moody down played any danger as a result of the firearms being hidden around his property. While there may not have been any immediate danger in the forty five minutes or so that the firearms were left out, there is always potential for firearms to be accessed unlawfully if they are not safely stored. In addition, Mr Moody has a young baby. There is a risk that firearms can be accessed by children and/or intruders if not safely stored at all times. However in this case there was no potential danger during the short period that the firearms were not safely stored.

29 Mr Moody gave evidence that he has had a firearms licence for 30 years and has served in the armed forces where he was trained in the use of firearms. He has never had any problems in relation to the possession or use of firearms. Mr Moody said that he understands the importance of safe storage and would never fail to store his firearms safely again. I accept this evidence.

30 The reason Mr Moody has a firearms licence is to cull wild dogs, feral cats and foxes which kill chickens, ducks and other livestock on Mr Moody’s property. The problems that these feral animals cause to Mr Moody and his livestock is evidenced by the letter from Mr Geoffrey Knight, Seabreeze Real Estate Company dated 12 July 2002, photographs provided by Mr Moody and Mr Moody’s oral evidence. Mr Moody’s partner, Jo Ritchie also has a firearms licence and no reason was given as to why she could not cull the animals on the property. In this case the reason for needing a firearms licence is not material to my decision.

Conclusion

31 The improvement of public safety by promoting the safe and responsible storage of firearms is identified as one of the underlying principles of the Act. In the ordinary case of failure to store a firearms safely with no satisfactory explanation for that breach and no other extenuating circumstances, the Commissioner will be justified in revoking the licence. However, in this case, I am satisfied that Mr Moody had a genuine (though misguided) reason for failing to store his firearms safely for a relatively short period, that there was no immediate danger and that his experience with firearms and acknowledgment of his error suggest that it is highly unlikely that he will commit a similar offence again. Mr Moody understands that when his existing licence expires on 22 June 2005 he will not be issued with a new licence for a period of 10 years from the date of his conviction.

Orders

The Commissioner’s decision to revoke the applicant’s firearms licence is set aside.