Morabito v Commissioner of Police, NSW Police

[2006] NSWADT 181

CITATION:	Morabito v Commissioner of Police, NSW Police [2006] NSWADT 181
DIVISION:	General Division
PARTIES:	APPLICANT Carmelo Morabito RESPONDENT Commissioner of Police, New South Wales
FILE NUMBER:	053341
HEARING DATES:	6/02/2006
SUBMISSIONS CLOSED:	02/06/2006
DATE OF DECISION:	06/16/2006
BEFORE:	Pearson L - Judicial Member
CATCHWORDS:	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:	Commissioner of Police v Toleafoa [1999] NSWADT AP 9 Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 O’Neile v Commissioner of Police, NSW Police [2006] NSWADT 160 O’Sullivan v Farrar (1989) 168 CLR 210
REPRESENTATION:	APPLICANT P Carey, Solicitor RESPONDENT M Maddox, Agent
ORDERS:	The decision to revoke Mr Morabito’s Firearm Dealer Licence No 408443657 is affirmed

1 Mr Morabito applies under s75 of the Firearms Act 1996 (“the Firearms Act”) to the Administrative Decisions Tribunal (“the Tribunal”) for review of a decision made by a delegate of the Commissioner of Police to revoke his Firearms Dealer licence.

2 On 29 April 2005 Mr Morabito was served with written notices informing him that his Category ABH Firearm Licence number 405694910, issued on 12 March 2003, and his Firearm Dealer Licence number 408443657, issued on 15 December 2001, had been revoked. The reasons for decision stated that the basis for both decisions was the conviction of the applicant for the offence of “licensed firearm dealer fail to ensure transaction recorded” at Nowra Local Court on 26 November 2004.

3 Mr Morabito requested internal review of both decisions. On 1 September 2005 the decision to revoke the Category ABH Firearm Licence was overturned, and the decision to revoke the Firearm Dealer Licence was affirmed.

4 The power to revoke a Firearm licence is conferred by s24 of the Firearms Act. The relevant provision is subparagraph 24(2)(b)(ii), which provides:

24(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 ain 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

(c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or

(d) for any reason prescribed by the regulations.

5 Clause 17 of the Firearm (General) Regulation 1997 provides:

In accordance with section 24(2)(d) of the Act, a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is issued to continue to hold it.

6 The Tribunal is required to determine is whether the Commissioner’s delegate made the correct and preferable decision, having regard to any relevant factual material and any written or unwritten law: s63(1) of the Administrative Decisions Tribunal Act 1997.

Background

7 Mr Morabito is 68 years old and has held various firearms licences since 1977. He was issued with a Category ABH Licence 405694910 on 9 March 1998. A further licence was issued on 12 March 2003. As noted above, this licence was revoked on 29 April 2005, and on internal review the decision to revoke was overturned. This licence is due to expire on 1 April 2008. Mr Morabito was issued a Firearms Dealer Licence 408443657 on 15 December 2001, due to expire on 15 December 2006.

8 It is common ground that Mr Morabito was charged under s45(1)(a) of the Firearms Act for failing to ensure proper recording of a transaction concerning a Swedish Mauser bolt-action rifle (serial number KB146170).

9 The Facts Sheet prepared for this matter summarised the background of the matter as follows:

On Wednesday the 28 April 2004, a 30 year old female died in the Haymarket area of Sydney as a result of a gun-shot wound inflicted by a 26 year old male. The male fired a further shot at a 52 year old male, wounding him in the left shoulder.

This incident was investigated by City Central Detectives under the operation of Strike Force BLUEWATER. As a result of that investigation, the 26 year old male was charged with Murder and a number of other offences.

A sawn-off shotgun was recovered at the scene by Police. Scientific examinations have since confirmed that it was the weapon used in this offence. A number of inquiries were made by Police in relation to the origin of that firearm.

As a result of those inquiries, Police determined that the weapon had previously belonged to a male named Roger CRISP. Mr CRISP died in March 2000. A number of other firearms were also owned by Mr CRISP at the time of his death. The whereabouts of those firearms is unknown.

Further inquiries led Police to speak to David ELLIOTT, who is the step-son of the deceased Mr CRISP. Mr ELLIOTT initially informed Police that he had a firearm registered in his name that had previously belonged to his step-father. He told Police he had taken the firearm to the Accused, in order for the Accused to register it.

That firearm is a Swedish Mauser, bolt-action rifle (serial no.KB146170).

The Accused was spoken to on the 17 August 2004 by Police and his Firearms Dealer’s records were inspected and copied. The Accused supplied a signed statement to Police stating that he had acquired the Swedish Mauser (serial no.KB146170) from the deceased estate of a person named Kenneth ACKLEY on the 10 April 2003. He stated that he then disposed of the firearm to Mr ELLIOTT on the 16 April 2003.

A number of further inquiries were conducted by Police in relation to this matter. Several inconsistencies were discovered in the official records kept by the Accused and in the details he provided to the New South Wales Firearms Registry.

Those inconsistencies include:

- Entry B4/125 of the Register of Acquisition or Disposal of Firearms (Register No. 123001) states that the Swedish Mauser (serial no.KB146170) was received on the 10/04/03 from Kenneth ACKLEY.

- Entry 1397017 of the Notice of Acquisition or Disposal of Firearms states that the Swedish Mauser (serial no.KB146170) was received on the 04/03/03 from Kenneth ACKLEY. (Of note is the fact that the day of the month appears to have been changed from 24 to 04).

- Entry 0397018 of the Notice of Acquisition or Disposal of Firearms states that the Swedish Mauser (serial no.KB146170) was disposed of to David ELLIOTT on 15/04/03.

- The Advice numbers for the firearms received from Kenneth ACKLEY on the 10/04/2003 are in chronological order for the first 3 firearms, and not in chronological order for the 4th firearm, being the Swedish Mauser (serial no.KB146170).

- NSW Firearms Registry records stating that the first 3 firearms received from Kenneth ACKLEY were acquired on the 29.05.03, with the 4th firearm, being the Swedish Mauser (serial no.KB146170) being acquired on the 31/03/03. This date is prior to the stated date of acquisition in other records.

- Register of Firearms in Possession in relation to Swedish Mauser (serial no.KB146170) by Carmelo MORABITO dated the 04/03/03. This date is over a month prior to the stated date of acquisition in other records.

As a result of the discovery of these inconsistencies and other information received, Police again spoke to Mr ELLIOTT.

Mr ELLIOTT informed Police that the firearm registered in his name did not previously belong to his deceased step-father. He admitted to buying the firearm on the street in the Bomaderry area from an unknown male. He admitted to knowing the firearm was unregistered when he purchased it.

Mr ELLIOTT also told Police that he took the firearm to the Accused in order for the firearm to be registered. He states he left the firearm with the Accused for a number of weeks, whereby the Accused had the firearm registered. He states he then paid the Accused approximately $200.00 and received the firearm back.

The Accused was again spoken to by Police on the 30 September 2004. Further records belonging to the Accused were examined at this time.

The inaccuracies in the Accused’s records were indicated to the Accused who, under caution, stated that he was confused about the records. He believed that Mr ELLIOTT had approached him to register a firearm. In relation to the numerous, different dates listed for the acquisition of the Swedish Mauser rifle, the Accused stated that the records were a mistake and incorrect.

The Accused further stated that he believed that he inadvertently recorded the receipt of the Swedish Mauser (serial no.KB146170) with the other 3 weapons from the deceased estate as they were all received on the same date and he has mixed them up. This is despite certain records indicating that the accused acquired the Swedish Mauser some weeks prior to the acquisition of the 3 firearms from the deceased estate.

10 On 26 November 2004 at Nowra Local Court Mr Morabito pleaded guilty and was fined $500 and ordered to pay court costs. Mr Morabito was not legally represented on that occasion.

Mr Morabito’s evidence

11 In his oral evidence Mr Morabito stated that in March 2003 he was contacted by a person who phoned him and said that he had a firearm which was unregistered, and wanted to know if he could register it. This was during the amnesty period, and he said that it could be done. He would have to check with the Firearms Registry and if it was OK it could be registered. Otherwise he would have to go to the Police station. Mr Morabito said that he telephoned the Firearms Registry and gave details to a Mr Stephen Gregory who said that he could register it. He could register the firearm in his name and send in the details. This was in the early days, about 15 months after he obtained his dealers licence. He registered the firearm in one book. He had a lot of things on, and forgot to register the firearm in the other book. There were a few other firearms about a month later. He was involved in a big competition and neglected to do the paperwork properly. When he discovered that he had not listed the firearm, he had to list another three from a deceased estate. In the confusion he did not remember where he got the firearm. He phoned the Firearms Registry again and was told that it was no big drama. He did not want to make more of a mess in the book, and when he put it in the book the dates were not in chronological order. He did not know it was an offence to do this sort of thing. Mr Morabito stated that some firearms came to him through the club, and he registered quite a few. He did not intend to do anything wrong. Mr Morabito acknowledged that he had changed a few dates, but he was inexperienced in the early days. It was a clerical error, and he had never tried to cover anything up.

12 Under cross examination, Mr Morabito agreed that he had received legal advice before appearing at Nowra Local Court. He had spoken to a chamber magistrate and a solicitor, who advised him to talk to the magistrate. Mr Morabito denied that he knew that the police were looking for a particular firearm. He knew that having an unregistered firearm was an offence, however during the amnesty he was able to register firearms without questions. He phoned the Firearms Registry to check whether there was a record, and if not, he could register the firearm. He told Mr Elliott that if he found anything on that particular firearm he would have to go to the police.

13 Mr Morabito was cross examined as to his procedure in completing documentation concerning firearms. The first document he completed was the P558 Application to Register Firearms in Possession. He would send this to the Firearms Registry. He did not complete other paperwork at this time. The Firearms Registry would send him a document and he would then enter the firearm in the other books. If the firearm was registered he would go straight to the Notice of Acquisition or Disposal. If not, he would wait for the Firearms Registry schedule. Mr Morabito agreed under cross examination that he should have put details of the firearm in the Register of Acquisitions and Disposals of Firearms. Mr Morabito was unable to provide a copy of a schedule received from the Firearms Registry relating to the book from which the Application to Register Firearms in Possession dated 4 March 2003 comes. Mr Morabito stated that the registration number appearing in the Register of Acquisitions and Disposals of Firearms comes by telephone from the Firearms Registry if the firearm does not already have one. He now knows that he is required to complete the Notice of Acquisition or Disposal within 24 hours.

14 Mr Morabito stated that he obtained three firearms from Mr Kevin Ackley, as a member of the club. Once he realised he had incorrectly put the name of Mr Kevin Ackley for the Swedish Mauser he phoned the Firearms Registry and was told not to worry about it. He filled out the Notice of Acquisition or Disposal (Advice No 0397017) and sent it to the Firearms Registry, at the same time as he completed the Register of Acquisitions and Disposals of Firearms. He completed Advice Nos 0397017 and 0397018 at the time that David Elliott picked up the firearm. Mr Morabito stated that he filled out Advice No 0397017 on 16 April, before Mr Elliott came over, and 0397018 on 16 April, when Mr Elliott came, with a permit to acquire the firearm, to pick up the firearm. He then filled in the details and sent the two documents to the Firearms Registry.

15 On re-examination, Mr Morabito stated that he could not recall when he realised the error in the paperwork. He applied for a dealers licence because there were no dealers in the Nowra area. There was a need to have someone in the area, to help the community and to help club members. Mr Morabito stated that he has had 223 transactions in total. It is not a business, and he is doing it to help club members. He charges minimal fees to club members, around $50 to $70.

Applicant’s submissions

16 The applicant’s solicitor argued that while a firearms dealer is required by section 45 of the Act to keep records in the form approved by the Commissioner of Police there is nothing in the legislation that requires details of the provider of the firearm to be kept. The applicant realised his error and made a phone call, and did not try to hide the transaction. At all times the firearm was locked in a secure facility and was disposed of to a person with lawful authority.

Respondent’s submissions

17 The respondent’s representative argued that the process outlined by the applicant in essence allowed a dealer to register a firearm first and then fill out the application forms, which allowed the requirements of the Act to be bypassed. Whether intentional or not, there had been a significant oversight concerning this firearm. The requirements of the Act are simple, and the applicant had had a dealers licence since 2001.

Findings and Reasoning

18 The applicant stated that his practice for an unregistered firearm was to contact the Firearms Registry by telephone to establish whether the firearm could be registered; to complete an Application to Register Firearms in Possession (Form P558) and forward this to the Firearms Registry; to wait for the Firearms Registry to send a schedule (usually some three to four weeks later); and then to complete the other documentation. Under cross examination the applicant agreed that he should have put the details of the firearm in the Register of Acquisitions and Disposals of Firearms at the time of the transaction, and that he now knows that he was supposed to complete the Notice of Acquisition or Disposal within 24 hours of the transaction.

19 The documentary evidence is incomplete. The applicant was unable to provide the schedule he states he received from the Firearms Registry relating to the Swedish Mauser. The respondent stated that there is no record of receipt at the Firearms Registry of the two Notice of Acquisition or Disposal forms (Advice No. 0397017 and 0397018). On examining the available documentary evidence, the dates recorded for the transactions concerning the Swedish Mauser are inconsistent. In the Register of Acquisitions and Disposals the date of acquisition is recorded as 10 April 2003; Form P558 is dated 4 March 2003; and Advice No. 0397017 shows the date “24/03/2003” altered to “04/03/2003”. The Register of Acquisitions and Disposals and Advice No. 0397017 both record that the applicant obtained the Swedish Mauser from Kevin R. Ackley. The applicant has acknowledged that this was incorrect, and that he obtained the Swedish Mauser from a person who had asked him to register the firearm for him.

20 The Tribunal finds that the applicant did not record details of the transactions acquiring and disposing of the Swedish Mauser correctly. The applicant argued that his failure to record the transaction correctly was due to inadvertence, rather than a deliberate attempt to conceal the truth of the transaction. There is no evidence as to any purpose that might have been served by a deliberate attempt to conceal the origins of the firearm, and according to the Fact Sheet, the background to the transaction emerged when the applicant and Mr Elliott were questioned further in September 2004. The evidence before the Tribunal does not establish that the applicant deliberately failed to record the transactions properly.

21 The failure to properly record these transactions was not the only instance where the applicant has failed to comply with the record keeping requirements of Part 5 of the Firearms Act. Based on a report provided by Sgt Steven Johnson dated 10 October 2003 to the Firearms Registry, an inspection/audit carried out on 9 October 2003 revealed that the applicant had failed to forward two quarterly returns with the required 14 day period. In his oral evidence the applicant stated that at that time he had been busy with club matters.

22 The applicant was convicted of an offence under section 45 of the Act. While the fact of the conviction does not mean that Mr Morabito’s licence must be revoked, it is relevant in considering whether or not to revoke a licence: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218.

23 This Tribunal has considered the concept of “public interest” in many decisions. In Commissioner of Police v Toleafoa [1999] NSWADT AP 9 the Appeal Panel stated at [25]:

The “public interest” is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.

24 In O’Sullivan v Farrar (1989) 168 CLR 210 (relied upon by Judicial Member Higgins in O’Neile v Commissioner of Police, NSW Police [2006] NSWADT 160), the High Court held:

‘…the expression “in the public interest”, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only “in so far as the subject matter and scope and purpose of the statutory enactments may enable…’

25 The purpose of the Firearms Act is set out in section 3:

Principles and objects of Act

(1) The underlying principles of this Act are:

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

(b) to improve public safety:

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

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

(c) to facilitate a national approach to the control of firearms.

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

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

(b) to establish an integrated licensing and registration scheme for all firearms,

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

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

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

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

26 The importance of the licensing and registration scheme in the maintenance of public safety is obvious. Law enforcement agencies must be able to identify those who hold firearms, and trace particular firearms, if, for example, they have been used in the commission of an offence. The licensing and registration requirements depend for their effectiveness on compliance with record keeping requirements in Part 5 of the Act. The purpose of the obligations to record transactions relating to firearms is to ensure that firearms can be located and identified and their history traced. The records kept by the applicant for the Swedish Mauser did not provide an accurate statement as to the circumstances of its acquisition, or the time that it was in the applicant’s possession.

27 The applicant has provided a number of character references, two of which point to the applicant having made a clerical error (Mr Cliff Austen, President Nowra Rifle Club Inc, and Dr Graham Morgan, GP). Mr Rob Boutcher, Executive Director, New South Wales Amateur Pistol Association Inc states in his reference that the applicant has been a member since 1976, holding numerous positions of responsibility, and has “carried them out in an exemplary manner”.

28 The Tribunal has had regard to these character references, and to the submissions made on the applicant’s behalf concerning the safe custody and appropriate disposal of the firearm. The Tribunal has accepted that the inaccurate recording of the transactions was not deliberate. However, at that time the applicant had held a firearms dealer licence for some 18 months, and this transaction was the 125th entry in the Register of Acquisitions and Disposals of Firearms. While the applicant stated that at the time he had been busy organising a competition at Nowra Rifle Club Inc, on his evidence, and the references provided by Mr Boutcher, Mr Cliff Austen, and Mr Darcy Baker, he has had a long involvement with the club, in positions of responsibility. The Tribunal does not accept that the failure to record the transactions correctly can be attributed to inexperience or overwork. Even if it were not intentional, it was a significant oversight. Having regard to the importance of the proper compliance with licensing and registration requirements under the Firearms Act, the Tribunal is satisfied that it is not in the public interest for the applicant to continue to hold a Firearms dealer licence. The decision of the respondent to revoke the applicant’s licence is affirmed.