Morarescu v Commissioner of Police, NSW Police Force

[2010] NSWADT 177

CITATION:	Morarescu v Commissioner of Police, NSW Police Force [2010] NSWADT 177
DIVISION:	General Division
PARTIES:	APPLICANT Stefan Morarescu RESPONDENT Commissioner of Police, NSW Police Force
FILE NUMBER:	103055
HEARING DATES:	17 May 2010
SUBMISSIONS CLOSED:	17 May 2010
EXTEMPORE DECISION DATE:	17 May 2010
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Firearms Act - firearms licence - revocation of licence
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Firearms Act 1996
CASES CITED:	Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 Wilkinson v Commissioner of Police, New South Wales Police Service [2002] NSWADT 59
REPRESENTATION:	APPLICANT In person RESPONDENT J Tillott, agent
ORDERS:	The Commissioner’s decision to revoke the Applicant’s firearms licence is affirmed.

1 The Applicant has held a Category ABC firearms licence under the Firearms Act 1996 (“the Act”) for many years. His licence was due to expire in September 2013. However, that licence was suspended on 24 December 2009, and then revoked on 6 January 2010.

2 The Applicant applied to the Tribunal for external review of the determination to revoke his licence. The matter came before me for hearing on17 May 2010. Following the hearing I affirmed the Commissioner's decision and gave brief reasons for my decision. The Commissioner has sought written reasons for the decision and more detailed reasons are now provided.

Background

3 The Applicant is 87 years of age and has no criminal convictions. No questions have been raised regarding his good character. The Applicant has been authorised to possess and use firearms in NSW since at least 1991 without any reported incident of misuse of firearms. On 4 September 2009 police inspected and approved the Applicant’s firearms safekeeping facility.

4 On 18 November 2009, as a pedestrian, the Applicant was involved in an accident with a motor vehicle. He was taken to Concord Hospital with multiple rib fractures. The Applicant’s licence was suspended on 24 December 2009, and then revoked on 6 January 2010. The revocation was due to concerns in regard to the deterioration of the Applicant’s mental and physical health. The Commissioner had information to suggest that the Applicant’s ability to control physical acts in accordance with rational judgement may be impaired on some occasions.

Relevant Legislation

5 Section 24(2)(a) of the Act prescribes that the Commissioner may revoke a firearms licence for any reason for which the licensee would be required to be refused a licence of the same kind.

6 Section 11(4)(c) of the Act prescribes 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 being of unsound mind.

7 With limited exceptions, section 75(1)(c) of the Act provides a person may apply to the Tribunal for a review of the decisions to revoke a licence.

8 Section 63 of the Administrative Decision Tribunal Act 1997 (“the ADT Act”) provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the Commissioner, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.

9 A frequently used phrase is that when conducting a review the Tribunal ‘stands in the shoes of the decision maker’ and exercises the same functions and powers. The Tribunal is therefore constrained in its powers to those held by the decision maker.

10 Section 63(3) of the ADT Act provides that in determining an application for the review of a reviewable decision, the Tribunal may decide:

(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or

(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

11 The Commissioner relies on material contained in the Applicant’s medical records. The relevant details are reasonably summarised in written submissions filed by Ms Tillot on behalf of the Commissioner. Insofar as relevant, the following details are provided:

- In December 2007 Dr Mears, the Applicant’s General Practitioner, referred the Applicant to the Cognitive Disorders Clinic at Concord Hospital. Dr Ciaron Upton, Geriatric Medicine, reviewed the Applicant and prepared a report dated 19 December 2007.

- Dr Upton referred the Applicant for testing with a Neuro psychologist, and relied on the results of that testing when compiling his final report. Dr Upton’s report states that the presenting complaint was "memory impairment'. He states that the Applicant had complained of short term memory impairment for a period of 2 or 3 years, "worsening over the last twelve months.'' Dr Upton states that the Applicant's habit of list making had prevented this memory impairment from causing him any significant difficulty. He described the Applicant as suffering from "mixed dementia of mild severity'". It was not clear to Dr Upton whether this dementia was vascular in origin, or a result of Alzheimer’s disease.

- Ms Therese Alting, Clinical Neuro psychologist, administered a number of cognitive tests to the Applicant. In her report under the heading Conclusions and Recommendations she noted "evidence of quite significant impairments in the Applicant's ability to acquire new information” and "some evidence of him forgetting information after a delay" and 'diminished abstract reasoning skills". Ms Alting also stated "it is also possible that he has a co-existing neurodegenerative process, such as the very early stages of Alzheimer's Disease."

- In November 2009, the Applicant was struck by a vehicle, and suffered a number of serious injuries. He was re-admitted to Concord Hospital.

- Following his admission to hospital, the Applicant asked a family friend (“the friend”) to enter his house and pay a number of bills. The Applicant signed a letter of consent, which was given to the friend. At the same time the Applicant gave the friend his house keys, which included the key to his safe with instructions to open the safe and pay bills with the money stored inside the safe. The friend told Police he found only $400 inside the safe. the friend said that he paid some bills from his own money as $400 was insufficient to pay all outstanding bills.

- On 21 December 2009, the friend drove the Applicant home from hospital, and returned his keys. The Applicant claimed to have left $4,000 in the safe. The friend claimed there had been only $400 in the safe. The two argued, and the friend left.

- The Applicant complained to Police that the friend had stolen $4,000 from his safe. On 22 December 2009, Police attended to investigate the theft. Constable Darko Piliskic, one of the attending Police, examined the safe. Constable Piliskic appeared and gave evidence at the hearing. His evidence was that there were no firearms stored in the safe at the time, only papers. Later, the friend told Constable Piliskic that when he entered the house he located one of the firearms outside the safe, and leaning up against the wall of the study. The friend claimed to have seen an inoperable firearm was situated behind the door in the study with an operable firearm stored safely.

- As a result of this information, and his own observations of the Applicant, Constable Piliskic reported his concerns that the Applicant was no longer a fit and proper person to hold a firearms licence.

- Constable Stewart Thompson provided evidence that he attended the Applicant’s premises in December 2009. He noted that the Applicant was very difficult to engage with and appeared quite withdrawn. He appeared quite vague and submissive to police requests. Constable Thompson does not believe that the Applicant understood the implications of having stored one of the firearms outside the safe, irrespective of it being inoperable.

- Following the revocation of his licence, the Applicant requested an internal review. To support his application he supplied a letter from Dr Mears, who stated that the condition leading to the confusional state, urinary and respiratory infections, had been resolved, and, in Dr Mears’ opinion, are no longer a valid consideration when considering revocation of the Applicant’s licence. However, Dr Mears agreed that the Applicant suffers from mild dementia, accompanied by memory loss, although not to such a degree that it would interfere with his normal daily activities.

- In a further letter to the Firearms Registry, Dr Mears conceded that the Applicant is able to make rational judgements "on most occasions" but that his rational judgement may be affected if he were to become ill again. Dr Mears subsequently advised staff from the Firearms Registry that it was his opinion that the Applicant may again have his ability to form rational judgement affected by urinary or respiratory infections. He considered that, that due to his age, the Applicant was highly likely to suffer an infection of that sort, and that such infections are likely to occur rapidly.

12 The evidence presented on behalf of the Commissioner supports this outline.

13 The Applicant relies on his own evidence, the evidence of Dr Mears and that of Ms Rick Saunders, a registered nurse who has known the Applicant for 24 years. Their evidence supports the Applicant’s assertion that in the past he had suffered from urinary and respiratory infections that lead to the confusional state, and that this had been largely resolved.

Consideration

14 On the evidence presented I do not agree with the Commissioner’s concerns in regard to the Applicant’s mental state. I am satisfied that the Applicant previously experienced a confusional state but that is not currently apparent. I accept Dr Mears explanation that the experience was the result of urinary and respiratory infections. While I accept that this is likely to reoccur, in my view this factor does not warrant revocation of the Applicant’s licence at this stage.

15 However, it is apparent from the Applicant’s evidence that in providing the friend access to his home, he also provided the friend access to his firearms. There is some suggestion that an inoperable firearm had been stored outside an approved storage safe however, there is doubt about whether that was in fact the case. Nevertheless, it is clear to me that the Applicant lacks understanding of the significance of safe storage of even an inoperable firearm. Even a firearm that is inoperable can be used in an armed hold-up. I am concerned that the Applicant does not understand the implications of allowing an unlicensed person to access his firearm. When he gave the friend access to his home and the safe he allowed the friend to have access to his firearms when the friend was not entitled to have that access. The Applicant alleged that the friend stole money from the safe. The friend could just as easily have stolen the Applicant’s firearms.

16 In Wilkinson v Commissioner of Police, New South Wales Police Service [2002] NSWADT 59 Deputy president Hennessy stated at paragraph [25]

25 As the Firearms Act does not list factors which a decision maker must take into account when exercising a discretion about revocation, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act. 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 instead elected to impose detailed and prescriptive requirements on all licensees.

17 The underlying principles of the Act stated in section 3(1) emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, at paragraph 28, Deputy President Hennessy said that in terms of public safety, “the Tribunal must be satisfied that there is virtually no risk”.

18 Numerous Tribunal decisions in matters where the Commissioner has revoked a firearms licence make it clear that the Tribunal views failure to store firearms safely extremely seriously.

19 The Applicant’s insistence that he did nothing wrong in respect of his firearms storage, serves as an indication that he lacked insight as to his failure to comply with his obligations under the Act. Consequently, I am unable to say that there is virtually no risk that the Applicant would not pose any risk to public safety if he were given access to a firearm.

20 For this reason, it is my opinion that the decision of the Commissioner to revoke the Applicant’s firearms licence is the correct and preferred decision.

Order

1. The Commissioner’s decision to revoke the Applicant’s firearms licence is affirmed.