Mouwad v Commissioner of Police, New South Wales Police Service

[2001] NSWADT 196

CITATION:	Mouwad -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 196
DIVISION:	General Division
PARTIES:	APPLICANT Robert Mouwad RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	003345
HEARING DATES:	8/03/2001
SUBMISSIONS CLOSED:	03/08/2001
DATE OF DECISION:	11/22/2001
BEFORE:	Rice S - Judicial Member
APPLICATION:	Firearms Act - firearms licence - revocation of licence or permit - Firearms licence - revocation of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Crimes Act 1900 Firearms (General) Regulation 1997 Firearms Act 1996 Administrative Decisions Tribunal Act 1997
CASES CITED:	Toleafoa (No 2) v Commissioner of Police [2000] NSWADT 48 Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11
REPRESENTATION:	APPLICANT J Conomos, barrister RESPONDENT C Capper, solicitor
ORDERS:	1 Pursuant to s 63(3)(a) of the Administrative Decisions Tribunal Act the Commissioner's decision to revoke Mr Mouwad's licence is affirmed; 2 Pursuant to s 88(1) no award of costs

Background
1 Mr Mouwad holds a Category H licence to possess and use a pistol under s8 of the Firearms Act 1996, for the genuine reason (within the meaning of s12 and its Table) of his business or employment as a security guard.

2 On 24 November 1999 Mr Mouwad was convicted of the offence of ‘Assault occasioning actual bodily harm’ and was fined $1500.00. On the same date he was convicted of the offence of ‘Assault’ and was fined $500.00.

3 In relation to each conviction Mr Mouwad appealed to the District Court against the conviction, and against the severity of the penalty. On 17 March 2000 the Court upheld the convictions. In relation to the conviction for assault the Court set aside the fine of $500 and imposed a fine of $199. In relation to the conviction for assault occasioning actual bodily harm the Court set aside the fine of $1500 and required Mr Mouwad to enter a recognisance under s558 of the Crimes Act 1900 to be of good behaviour for four years.

4 On 20 April 2000 a delegate of the Commissioner decided to revoke Mr Mouwad’s Category H licence. The Revocation Order itself gave no reason, although it is apparent from the Licence Adjudication Sheet on Commissioner’s file that the revocation was, relevantly. “for not fit and proper . . . has convictions for AOABH & common assault”.

5 Mr Mouwad requested an internal review of the decision. By letter dated 28 September 2000 a delegate of the Commissioner advised that the decision to revoke the licence “is to stand”. The Reasons given for that decision were inferences, drawn from the convictions, as to

• Mr Mouwad’s likely behaviour in situations requiring self-discipline
• the likelihood of Mr Mouwad resorting to violence in certain circumstances
• lack of confidence in Mr Mouwad’s ability to control anger.
6 As well it was said that it is not in the public interest for Mr Mouwad to hold a licence.

7 On 1 November 200 Mr Mouwad applied to this Tribunal for a review of the Commissioner’s decision. I heard evidence and argument in the matter on 8 March 2001.

Grounds for revocation
8 The power to revoke a licence is in s24 of Firearms Act 1996 (FA). The grounds for revocation are in s24 of the Act, and in the Firearms (General) Regulation 1997 (FR).

9 In deciding what the correct and preferable decision is in relation to the revocation of his licence, Mr Mouwad’s circumstances raise three questions under the Firearms Act:

Is Mr Mouwad a fit and proper person? This is provided for in FA s24(2)(c)); and alternatively is arrived at through the combined effect of FA s24(2)(a) and11(3)(a).
Can Mr Mouwad be trusted to have possession of firearms without danger to public safety or to the peace? This is arrived at through the combined effect of FA s24(2)(a) and 11(3)(a).
Is it in the public interest for Mr Mouwad to continue to hold a licence? This is arrived at through the combined effect of FA s24(2)(d) and FR cl.17
10 For practical purposes these resolve into two issues: ‘fit and proper’, and ‘public interest’.

Fit and proper
11 In questioning Mr Mouwad’s fitness and propriety to hold a licence, the Commissioner relies on the two assault convictions in 1999, and on 1989 convictions on two counts for each of resisting arrest, hindering police, assault police, and one count of use of offensive language.

12 A conviction in itself will not ordinarily be enough for the Tribunal make an adverse finding on fitness and propriety (eg Toleafoa (No 2) v Commissioner of Police [2000] NSWADT 48 and cases cited there). It is the person’s conduct, not the fact of a conviction, which is to be considered.

13 The Commissioner says inferences should be drawn from the convictions, to the effect that Mr Mouwad is a person who lacks self-discipline in situations requiring it, who is likely to resort to violence in certain circumstances, and of whom the public would have no confidence in his ability to control his anger. Such inferences indicate, says the Commissioner, that Mr Mouwad is not a fit and proper person to hold a licence.

14 Mr Mouwad says of the 1989 offences that they occurred when he drank alcohol for the first time. In cross-examination Mr Mouwad said he did not know the truth of a suggestion that he had injured the police officers, and I note that the Commissioner led no evidence to support this contention. All I know of circumstances of the 1989 offences is the one comment Mr Mouwad made, and what I can reasonably infer from the nature of the offences, that is that his conduct involved some degree of aggressive behaviour and disregard for the authority of the police.

15 In relation to the 1999 assault offences, Mr Mouwad was involved in a discussion with a client about money owing for the hire of security services. It was in the course of that discussion that Mr Mouwad became angry and engaged in the conduct which lead to the offences. Mr Mouwad has not contested before me the circumstances of the offences as found by His Honour Judge Ducker in the District Court, the transcript of which is at Tab H in the material filed by the Commissioner. His Honour said:

I have absolutely no doubt that the appellant [Mr Mouwad] became quite infuriated and no doubt either that throughout the whole of the incident which followed he was the aggressor . . .
I have no doubt that the appellant did use his knee with some force to the knee of A. and . . . that he struck A. (although) it was not a punch . . .
I have no doubt that M. was head butted by the appellant as well as being struck a number of times by him. I totally reject any suggestion that it was necessary or could reasonably have been regarded by . . . the appellant . . . as necessary that such a concerted forceful attack be made upon the fairly aesthetic looking and thinly built young man . . .
. . . [the appellant’s] suggestion that it was necessary to throw a number of powerful wild punches at this young man was quite unacceptable. I believe that M. was absolutely no threat to the appellant in real terms and that what occurred was not in any way a product of the appellant’s desire to defend himself, but a product of his anger . . .
. . . the appellant instigated the violence.. . . I do not accept that [the appellant acted in self defence] but even if I had the reaction of the appellant and the degree of force which he used was totally out of all proportion to any threat that he could possibly have imagined . . .
I am prepared to accept that . . . something must have provoked [the appellant] into this explosive outburst, that A. made a number of remarks that were enough to get [the appellant] upset . . .
16 In his statement to this Tribunal Mr Mouwad says simply
I am aware of the necessity for person who holds firearms licences to have a greater degree of self control in situations where they are provoked and indeed in all situations.
17 I heard evidence from Mr Mouwad, a large part of which detailed his current business arrangements and his plans for expansion of his business. He emphasised the importance of a firearms licence to his business.

18 Relevantly, Mr Mouwad said that he is not proud of what happened in relation to the assaults. He agrees he lost control and that his response was excessive. He says there is no chance of repetition of that conduct. He understands that it is a privilege to hold a firearms licence.

19 Mr Joseph Tannous gave evidence for Mr Mouwad. He prefers to engage Mr Mouwad’s security services for functions as the services are provided professionally, and he has done so about thirty times. He has “rarely seen [Mr Mouwad] angry. It is usually very short”. He has never seen Mr Mouwad act violently.

20 Mr Anthony Sakr gave evidence for Mr Mouwad. Mr Sakr’s evidence concerned Mr Mouwad’s good character, which is not is issue in this matter. To the extent that Mr Sakr referred in his statement to Mr Mouwad being trustworthy, he was clearly not directing his mind to the requirement of the Firearms Act that a person “be trusted to have possession of firearms without danger to public safety or to the peace”. Mr Sakr was unaware of the nature of Mr Mouwad’s application to the Tribunal, and unaware of whether Mr Mouwad carries a firearm for his work. He said however he would trust Mr Mouwad with a firearm.

21 Mr Simon Sassine gave evidence for Mr Mouwad. Mr Sassine’s evidence was in part as to Mr Mouwad’s character. Mr Sassine trusts Mr Mouwad to supervise security at events but was unaware that Mr Mouwad uses a firearm in his work.

22 Mr Gregory Finn gave evidence for Mr Mouwad. Mr Finn’s evidence too was in part as to Mr Mouwad’s character. In relation to his fitness as a holder of a firearms licence, Mr Finn’s evidence was similar to that of Mr Tannous: having engaged Mr Mouwad to perform security work, he has not seen Mr Mouwad angry or use violence even though Mr Mouwad has been in situations where he has dealt with aggressive patrons.

23 The evidence given for Mr Mouwad supports his good character which is not in issue. The evidence is also relevant to his trustworthiness as a security guard, quite apart from his possession and use of firearms. On the issue in this matter – his fitness as person to possess and use firearms – the evidence suggests that Mr Mouwad is not a violent man and does not react aggressively when provoked. Mr Tannous refers to rare and short periods of anger without violence.

24 Against this I must consider the 1989 convictions, the circumstances of the 1989 assaults, and His Honour’s unequivocal findings that Mr Mouwad’s reaction was violent and, even if provoked, about which there is some doubt, completely disproportionate.

25 There is little in the circumstances of the offence to explain in any rational way Mr Mouwad’s reaction to a dispute over payment of a fee. The circumstances in which those assaults occurred were not unusual. They are in fact the very circumstances Mr Mouwad is likely to find himself in as he continues to conduct business and engage in discussions with clients, at times no doubt over disputed payments and with difficult clients.

26 This Tribunal consistently refers to Australian Broadcasting Tribunal -v- Bond (1990) 94 ALR 11 when considering whether a person is ‘fit and proper’. The Tribunal is to have regard to “the nature of the activities”, and to whether a person is “fit and proper to undertake the activities in question”.

27 I have considered the matters set out by Toohey and Gaudron JJ in Australian Broadcasting Tribunal -v- Bond at page 56: the purpose for which Mr Mouwad is licensed to use firearms, the circumstances in which he has access to and uses firearms, the existence of previous convictions for conduct similarly indicative of violent behaviour, Mr Mouwad’s unchallenged good character, the circumstances in which his conduct occurred, his regret for his conduct, and his stated resolve not to act in that way in the future.

28 Taking account of these many and competing considerations, in my opinion Mr Mouwad is, on balance, no longer a fit and proper person to hold a firearms licence.

Public interest
29 An alternative ground arises under FA s24(2)(d) and FR cl.17(1): that it is not in the public interest for Mr Mouwad to continue to hold his licence.

30 For the same reasons on which I based my view that Mr Mouwad is no longer a fit and proper person to hold a licence, I think that the public interest in a high level of safety is endangered by Mr Mouwad continuing to hold a licence.

Discretionary decision
31 In light of comments made by His Honour in the District Court proceedings, the unusual penalty imposed, and the stated reasons for that penalty, I say the following so that Mr Mouwad is not in any doubt as to the nature of the decision that I have made.

32 Any decision to revoke a firearms licence is made under FA s24. Section 24 refers to a number of circumstances in which a licence may be revoked. I emphasise the word ‘may’. That is the word used in s24, and there is no doubt that it indicates that the Commissioner and, on review, this Tribunal, has a discretion as to whether or not to revoke the licence. It is not the case that revocation is required, ie that it is mandatory.

33 One of the grounds on which a licence may be revoked is the commission of an offence of violence which is defined, relevantly, as one for which a penalty of $200 or more has been imposed. His Honour imposed a fine of $199 explicitly to avoid the operation of this provision, shifting the pecuniary penalty to a costs order; His Honour ordered costs of $1000 be paid, making what he called “the somewhat creative use of the power of costs which may be awarded”.

34 He said that

There may be theoreticians who would believe that it may not be an entirely intended method of or circumstance in which costs should be awarded, however I do not think there is an embargo on the order of costs under the new system.
35 His Honour took this course in relation to Mr Mouwad “rather than see you and your family subjected to a mandatory provision”. His Honour then made some remarks about what he saw is the impropriety of mandatory provisions.

36 For Mr Mouwad’s sake I want to make it clear that he has not been subjected to a mandatory provision in this decision. He would not have been subject to a mandatory provision in this decision even had the fine been $200 or more. This Tribunal has weighed up competing considerations, and exercised a discretion.

37 A longer term consideration which Mr Mouwad and His Honour may have had in mind is the mandatory civil and administrative consequence of a penalty which a court chooses to impose. Such consequences are unremarkable, characterising a wide range of licensed activities. In relation to firearms, the Commissioner is required to refuse the issue of a licence if an offence of violence, as defined, has occurred in the 10 years before the application (FA s11). A penalty of $199 avoids this provision, despite the seriousness of the offence clearly being at a level which the Parliament intended would preclude gun ownership. Other considerations will however arise for the Commissioner under FA s11 if and when Mr Mouwad applies for a firearms licence.

Decision
38 Having regard to the relevant factual material and the applicable law, I have decided that the correct and preferable decision is that Mr Mouwad’s firearms licence should be revoked.

Order

1. Pursuant to s63(3)(a) of the Administrative Decisions Tribunal Act I affirm the Commissioner’s decision to revoke Mr Mouwad’s licence.
2. Pursuant to s88(1) I make no award of costs.