Nasr v Commissioner of Police, New South Wales Police Service

[2000] NSWADT 138

CITATION:	Nasr -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 138
DIVISION:	General Division
PARTIES:	APPLICANT Nasr Francisse Nasr RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	003230
HEARING DATES:	22/08/2000
SUBMISSIONS CLOSED:	08/22/2000
DATE OF DECISION:	10/09/2000
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:	Firearms Act 1996
CASES CITED:	Australian Broadcasting Tribunal -v- Bond (1990) 94 ALR 11 Bourke -v- commissioner of Police [1998] NSWADT 1 Ward -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 28
REPRESENTATION:	APPLICANT In person RESPONDENT M Tzannes, barrister
ORDERS:	The decision of the Commissioner to revoke the applicant's Category A and B firearms licences is affirmed.

Background

1 This is an application for a review of a decision of a delegate of the Commissioner of Police to revoke Mr Nasr’s firearms licence. Mr Nasr was issued with a Category A and B firearms licence on 28 July 1998 for recreational hunting. The licence was revoked on 17 November 1999.

2 The basis for the decision to revoke the licence were convictions in the Local Court on 15 September 1999 for the offences of common assault, malicious damage and possess offensive weapon. Mr Nasr was placed on a bond of $500 for 2 years in relation to these convictions and was ordered to pay $714.00 compensation in respect of the conviction for malicious damage.

3 Mr Nasr applied for an internal review of the decision to revoke his firearms licence. On review, the decision was affirmed. Mr Nasr applied to the Tribunal for a review of that decision on 1 June 2000.

The law

4 The Firearms Act 1996 (the Act) sets up a scheme for licensing people to possess and use firearms. There are several provisions which allow the Commissioner to revoke a licence. There are three grounds for revocation which the Commissioner submits are relevant to the facts of this case. In brief they are that a licence may be revoked:

· for any reason for which the licensee would be required to be refused a licence of the same kind (s 24(2)(a);
· if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence (s 24(2)(c));
· if the Commissioner considers that it is not in the public interest for the person to whom the licence is issued to continue to hold it (s 24(2)(d) and Clause 17 of the Firearms (General) Regulation 1997)

5 Mr Nasr gave evidence that he has had a firearms licence for approximately 15 years and that he enjoys hunting rabbits as a hobby. He goes hunting about once a year and uses a 12 gauge “over and under” shot gun.

6 Mr Nasr pleaded guilty to charges of common assault, maliciously destroy or damage property and having custody of an offensive implement in a public place. I did not have a copy of the transcript from the Local Court proceedings, however the Fact Sheet, as presented by the Police Service at the hearing on 15 September 1999, states Mr Nasr and another person (the victim) both started to drive into the same parking spot. The victim parked in the spot and Mr Nasr said to him:

You asshole, you idiot, get out the car, it’s my parking spot.

7 The Fact Sheet goes on to report that the victim then reversed his car out of the spot so that Mr Nasr could park his car. Mr Nasr then got out of his car and smashed his fist against the victim’s passenger door. He then opened the door and said to the victim, “you fucken asshole come outside and I’ll fix you.” The victim stated that Mr Nasr pulled him out of the car and grabbed him around the throat and punched him with a closed right hand fist to the left shoulder. Mr Nasr returned to his vehicle and removed a three foot long wooden stick and despite some bystanders trying to restrain him, he smashed the back windshield of the victim’s car. The victim’s wife and two children were in the back seat and were sprayed with shards of glass.

8 Mr Nasr disputed this version of events in oral evidence. He said that a fight started and it wasn’t his fault. He said the other driver came with a steering wheel lock and hit him, so he had to defend himself. He took a stick about 1 foot long out of his boot and broke the back of the other driver’s window with the stick. He says the other man started the fight and that he got upset and hit the window with a stick. He said he tried to settle down and he didn’t mean to break the window.

9 Contrary to the Police Fact Sheet, Mr Nasr says that the person in the other vehicle took the parking space and stayed there. Mr Nasr could not offer an explanation as to why the other person attacked him if they had been successful in parking in the vacant spot.

10 Despite some reference in the file to Mr Nasr attending an anger management course, Mr Nasr said he has never been to an anger management course nor did the Magistrate recommend that he attend one. There were no conditions attached to his bond.

11 Mr Nasr said that he realises he did something wrong and is sorry about what happened. He said he would try his best to make sure that nothing like that happens again.

12 Mr Nasr has no other criminal convictions and provided references from Sr Mary McEnearney, administrator of St Mary’s House, the parish priest from St Nicholas Antiochian Orthodox Church, the principal of St Mel’s Primary School and the Manager of the Lebanese Welfare Centre. Mr Nasr agreed that these references were provided for the criminal matter in the Local Court and that he had not been convicted at the time they were written. They do not relate to his application for a firearms licence.

13 The reference from the parish priest says that “It is out of his character, to attack anyone, as we know of his quiet personality.” On cross examination, Ms Tzannes, representing the Commissioner, suggested that these comments imply that Mr Nasr must have told the Parish Priest that he attacked the other motorist even though he denied in oral evidence that he had assaulted anyone. In cross examination Mr Nasr agreed that he had a right to be angry because someone else took his parking spot.

Findings of fact

14 I did not have the benefit of any transcript of the proceedings in the Local Court, so I do not what findings of fact the Magistrate made. Mr Nasr was convicted of common assault, malicious damage and possess offensive weapon. He denies punching the victim on the shoulder but he does not deny breaking the rear window of the victim’s car with a wooden stick. In the light of the findings of the Local Court and in the absence of any evidence from witnesses, I find that Mr Nasr assaulted the victim and broke the rear windscreen of his car with a stick. These actions were Mr Nasr’s response to a disagreement about a parking space.

Applicant’s submissions

15 The applicant was not represented at the hearing. His submissions were basically that the Police Fact Sheet made the incident look like a “bid deal” when it was not. He said he was sorry about what happened and that if he knew he would lose his firearms licence he would never have become involved in the fight.

Respondent’s submissions

16 The respondent’s first submission was that the licence should be revoked pursuant to s 24(2)(a) of the Act. That provision states that:

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.

17 The submission was that there were three reasons for which a licence of the same kind would have been refused under the provisions of the Act and that this gave the Commissioner discretion to revoke the licence for the same reasons.

18 The first reason for which the licence would have been required to be refused was that Mr Nasr has committed:

An offence under the law of any Australian or overseas jurisdiction:
(i) involving the infliction (or attempted infliction) of actual bodily harm to another person, and
(ii) in respect of which, either the convicted person has been sentenced to imprisonment for 28 days or more, or a penalty of $200 or more has been imposed on the person. (Clause 5(c) of the Regulation.)

19 Mr Tzannes submitted that because mandatory refusal under Clause 5(c) refers to the attempted infliction of actual bodily harm, the Tribunal is required to determine whether there was such an attempt in this case.

20 The second reason for which the licence would have been required to be refused was that Mr Nasr was subject to a recognisance to keep the peace. Section 11(5)(d) of the Act states that:

A licence must not be issued to a person who:
(d) is subject to a recognisance, granted in New South Wales or elsewhere, to keep the peace.

21 The third reason was that the Commissioner was justified in revoking Mr Nasr’s licence because, pursuant to s 11(3)(a):

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.

22 The respondent’s second submission was that the Commissioner was justified in revoking Mr Nasr’s licence because he is not a “fit and proper person” to hold a firearms licence. Section 24(2)(c) of the Act states that:

A licence may be revoked if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence.

23 In support of this submission the respondent said that the offences for which Mr Nasr has been convicted demonstrate a propensity to use violence to resolve disputes. One of the objects of the Act expressed in s 3(1)(a) is “to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety.” In the respondent’s submission, in the light of this object, Mr Nasr cannot be considered a fit and proper person to hold a licence.

24 The respondent’s final submission was that the Commissioner was justified in revoking the licence because it is not in the public interest for him to hold a licence. Clause 17 of the Regulation states that:

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.

25 In the respondent’s submission there is little or no advantage to the public interest in the applicant retaining the firearms licence because it is merely for his recreational use. On the other hand, the public safety considerations suggest that it is not in the public interest for Mr Nasr to continue to hold a licence.

Reasons and decision

26 I propose to deal first with the respondent’s second and third submissions.

27 The respondent’s second submission was based on s 24(2)(c) of the Act that a licence may be revoked if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence.

28 As the respondent pointed out, the assessment of whether a person is a fit and proper person to hold a licence was discussed in Australian Broadcasting Tribunal -v- Bond (1990) 94 ALR 11 at 56 per Toohey and Gaudron JJ at 56:

The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

29 One of the objects of the Act, as set out in s 3, is "to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety." In determining whether Mr Nasr is a fit and proper person to hold a licence consideration must be given to the circumstances surrounding his convictions. The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Nasr would not pose a risk to public safety if he had access to firearms.

30 The factors which suggest that Mr Nasr’s would pose a risk to public safety if he had access to a firearms licence are that he damaged property using a stick in an expression of anger over a conflict involving a car parking space. He also assaulted the man driving the car, but I am not able to determine on the basis of the evidence exactly what that assault involved. Contrary to the respondent’s submission, he has been convicted of one, not three, offences of violence. The assault conviction was for “common assault” and having custody of an offensive implement does not involve violence.

31 The factors that suggest that despite Mr Nasr’s conduct, he would not pose a risk to public safety if he had a firearms licence are as follows:

· Mr Nasr has never been convicted of any other criminal offences;
· several reputable people in the community have attested that it is out of character for him to lose control in the way he did;
· he has held a firearms licence for approximately 15 years without coming to the attention of police;
· he showed some regret over his actions and said he would try his best to make sure that nothing like that happens again.

32 Weighing up all the factors, I am satisfied that the Commissioner made the correct and preferable decision in revoking Mr Nasr’s licence based on his opinion that Mr Nasr is no longer a fit and proper person to hold a licence. Despite the fact that Mr Nasr is otherwise of good character, the incident revealed a streak of violent behaviour which convinces me that, at least for the time being, Mr Nasr should not be extended the privilege of possessing or using a firearm.

33 The third submission on which the Commissioner relied was that 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. Having come to the view that the Commissioner made the correct and preferable decision to revoke Mr Nasr’s licence under s 24(2)(c), it is not necessary for me to determine whether the decision was also justified under s 24(2)(d) and Clause 17 of the Regulation. However, given the connection between the question of whether a person is a fit and proper person to hold a licence and the question as to whether he or she would pose a risk to public safety, I am satisfied that the Commissioner’s decision was also justified pursuant to public interest considerations.

34 In relation to the respondent’s first submission, pursuant to s 24(2)(a), the Commissioner has a discretion to revoke a licence for any reason for which the licensee would be required to be refused a licence of the same kind. The respondent submitted that there were three reasons which would require the Commissioner to refuse Mr Nasr a licence had he been applying for one. In the respondent’s view the Commissioner was justified in revoking his licence for any one or all of these reasons.

35 I do not accept the respondent’s submission in relation to the first reason. There is no evidence that Mr Nasr has committed an offence “involving the infliction (or attempted infliction) of actual bodily harm to another person.” Mr Nasr was convicted of common assault. It is not up to the Tribunal to make a finding on the evidence in civil proceedings, as to whether Mr Nasr has committed a criminal offence with which he has never been charged. This conclusion is consistent with several other cases decided by the Tribunal including Bourke -v- Commissioner of Police [1998] NSWADT 1 and Ward -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 28.

36 Even if this conclusion is not correct, Clause 5(c) of the Regulation provides that in relation to the commission of the offence, the convicted person must either have been sentenced to imprisonment for 28 days or more, or a penalty of $200 or more has been imposed. Since Mr Nasr was not imprisoned or fined for the offences, neither of these conditions apply to him.

37 Consequently the Commissioner would not have been required to refuse a licence to Mr Nasr on the basis of these convictions and there is no discretion to revoke a licence for that reason.

38 The second reason in relation to the respondent’s first submission was that Mr Nasr was subject to a recognisance to keep the peace and that the Commissioner would be required to refuse a licence if Mr Nasr was applying for a new licence.

39 I am satisfied, on the basis of the evidence before me, that the Local Court deferred passing sentence on Mr Nasr and required him to enter a recognisance in the sum of $500 to be of good behaviour for a period of two years and to come up for sentence if called on. In these circumstances, the Commissioner would have been required to refuse Mr Nasr a licence if he had been applying for one. However, contrary to the respondent’s submission, the Commissioner is not required to revoke a licence on this ground. Pursuant to s 24(2)(a) a licence “may” be revoked in these circumstances. My view is that the use of the word “may” gives the Commissioner a discretion to revoke or not to revoke a licence on that ground. The basis for the exercise of such a discretion is that despite the fact that Mr Nasr is subject to a recognisance, there is other evidence which indicates that the correct decision is not to revoke the licence. In the absence of any such evidence which persuades me that Mr Nasr should have retained his licence, the Commissioner was also justified in revoking his licence on this ground.

40 The third ground relating to the respondent’s first submission was that pursuant to s 11(3)(a), “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.” This provision repeats, in a different context, the test laid down in s 24(2)(c). As I have made a determination in relation s 24(2)(c) there is no need for me to make a determination in relation to this ground.

41 These conclusions do not prevent Mr Nasr from applying for a firearms licence in the future. When Mr Nasr is no longer subject to a recognisance and has demonstrated an ability to control his anger without resorting to violence, the Commissioner may be satisfied that he can again be afforded the privilege of firearms possession and use without risk to public safety.