O'Donnell v Commissioner of Police, New South Wales

[2009] NSWADT 162

CITATION:	O’Donnell v Commissioner of Police, New South Wales [2009] NSWADT 162
DIVISION:	General Division
PARTIES:	APPLICANT Brian O’Donnell REPSONDENT Commissioner of Police, New South Wales
FILE NUMBER:	083122
HEARING DATES:	12 November 2008
SUBMISSIONS CLOSED:	12 November 2008
DATE OF DECISION:	25 June 2009
BEFORE:	Grotte E - Judicial Member
CATCHWORDS:	Firearms Act – Firearms Licence – Issue of Licence
LEGISLATION CITED:	NSW Firearms Act 1996 Firearms Regulation 2006 Crimes (Sentencing Procedures) Act 1999 Criminal Record Act 1991 Administrative Decisions Tribunal Act 1997
CASES CITED:	DP –v- the Commissioner of Police (2007) NSWADR 277 Lynch –v- The Commissioner of Police (2006) NSWADT 80 Uzelac –v- Commission of Police, Ministry of Police (2003) NSWADT 226 Phegan –v- Commissioner of Police, New South Wales Police Service (2002) NSWADT 127 Hart –v- Commissioner of Police, New South Wales Police Service (2003) NSWADT 114 Vella –v- Commissioner of Police, NSW Police Service (2003) NSWADT 91 Moody –v- Commissioner of Police, New South Wales Police (2002) NSWADT 146 Wiltshire –v- Commissioner of Police, New South Wales Police (2005) NSWADT 75 Ward v Commissioner of Police [2000] NSWADT 28 Rosenboom v Commissioner of Police, New South Wales Police [2006] NSWADT 10 Dewar v Commissioner of Police, New South Wales Police Service [2003] NSWADT 115
REPRESENTATION:	APPLICANT Jason Li, Solicitor RESPONDENT N L Sharp, Counsel
ORDERS:	The decision under review is affirmed.

REASONS FOR DECISION

1 Brian O’Donnell is 54 years of age. He lives on a property at Junee, where he runs a 200 acre farm on which he has livestock and plants crops. He is a current member of the Australian Army Reserve and is a Private in the Reservists. He has been a member of the Reservists for 27 years.

2 Mr O’Donnell has been a licensed shooter for most of his life. Mr O’Donnell has been a member of the Junee Rifle Club for about 15 years and he held the position of Club Captain for 4 years through the National Rifle Association of Australia Limited and has overseen and supervised many ranges in his shooting career. He has also been a Member of the Australian Army Rifle Association for 12 years. He has represented the Armed Forces at international shoots. Mr O’Donnell has also been an accredited Coach in the full-bore shooting category and coached the Australian International Army team.

3 Mr O’Donnell has held a Category AB firearms licence since 27 March 1998. This licence was suspended on 25 October 201 and remained suspended until it expired on 8 May 2003. He has not had an active firearms licence since 25 October 2001.

4 On 2 January 2007 the New South Wales Police Firearms Registry refused Mr O’Donnell a firearms licence because it considered that the issue of such a licence would be contrary to the public interest. Information available to the Commissioner indicated that on 23 July 2001 Police seized 44 firearms from Mr O’Donnell’s premises including a silencer, a large quantity of ammunition and scopes, an F1 booby trap and a large amount of field equipment believed to have belonged to the army. A number of these items were not stored according to the legislative requirements and a number of the firearms were not registered as required. Mr O’Donnell was also charged with not keeping a firearm safely, possessing an unregistered firearm and possessing a prohibited weapon. Mr O’Donnell was placed on three concurrent good behaviour bonds for a period of two years under the Crimes (Sentencing Procedures) Act 1999. This decision was reviewed internally on 11 March 2008.

5 The following submissions were made on behalf of Mr O’Donnell to the Commissioner of Police dated 26 June 2007:

(i) Mr O’Donnell has been a licensed shooter most of his life.
(ii) He was a holder of a Category AB Firearms Licence Number 40571759 from 27 March 1998. It expired on 8 May 2003.
(iii) Mr O’Donnell has been a member of the Armed Forces for 26 years.
(iv) Mr O’Donnell has been a member of the Junee Rifle Club for 15 year, four of which as Captain of the Club. He was a member of the Australian Army Rifle Association for 12 years.
(v) Mr O’Donnell represented NSW for the Armed Forces for a 10 year period from 1990 to 2000 and in 2000 and 2001 he represented Australia in Canada and the United Kingdom.
(vi) Mr O’Donnell owns and runs a 200 acre farm in Junee, on which he runs livestock and grows crops. It is necessary to control pests and feral animals.
(vii) Mr O’Donnell has not had any criminal convictions and he is aged 53.
(viii) The offences occurred on 23 July 2001 and dealt with by Wagga Wagga District Court on 20 September 2004.
(ix) The circumstances of the offences were as follows:
(a) There was an alleged assault involving Mr O’Donnell’s daughter and the police were called to his premises, at which time they found various firearms and accessories.
(b) Judge Woods of the District Court was not satisfied that the alleged assault occurred.
(c) Judge Woods found the firearms offences proven but dismissed them under section 10 of the Crimes (Sentencing Procedure) Act 1999 , upon Mr O’Donnell entering three concurrent two year bonds, which expired on 20 September 2006.
(d) During the District Court proceedings it was established that Mr O’Donnell was the registered owner of numerous firearms, that he had a gun safe, which complied with legislation. That nine of the firearms found outside the gun safe were not capable of being fired and that Mr O’Donnell is a collector of firearms and associated items.
(e) Mr O’Donnell has committed no further offences.
(f) Mr O’Donnell is an accomplished target shooter, who represented the State and Australia in the field of shooting and he wished again to compete and attend his club and he wished to be able to control pests and feral animals on his farm.

6 Attached to the Application for Internal Review is a letter from Mr O’Donnell dated 25 June 2007, in which he stated that:

(i) Over the previous six years he had been to court many times because of his 14 year old daughter, Linda.
(ii) She had refused to return home after a visit to Forbes in the school holidays. He went to fetch her and slapped her on the backside. He put her in his car, returned home when she attempted to run away again. She was “boy mad” at the time and wanted no restrictions on her lifestyle.
(iii) The following day he was visited by two female police officers. They spoke with his daughter. They told him Linda had alleged that he had assaulted her and the officers demanded that he hand over his firearms. He refused. The police officers left and his daughter went with them.
(iv) The police later broke into his house, seized all of his firearms and accessories, as well as case, a coin collection, his CD collection, personal papers, tools and computer parts and ammunition considered to belong to the military. He stated “they virtually trashed the place”.
(v) The unlicensed firearm was in the process of being registered and the silencer did not belong to him and was to be returned to its owner. He did not intend to break the law. At the time he was a certified forearms officer and Club Captain of the local rifle club.
(vi) Shooting and firearms collecting has been his hobby and he has represented Australia and New South Wales at the national and international level for over 10 years.
(vii) In 2001 he represented both the Army and the Australian National team overseas in England and Canada.
(viii) As a result of the court battle he has suffered depression and his service in the Army has also suffered. He has lost contact with his daughter, having spoken to her only twice since the court hearings.
(ix) He is extremely bitter and critical of the police and the legal court system. He believes he has suffered enough over the last six years.
(x) No convictions were recorded. The judge emphasised to him the need to comply strictly with all firearm matters, whilst acknowledging the difficulty of maintaining licences of so many firearms and equipment as he had.

7 Also attached to the Application for Internal Review are two character references from the Junee Ex-Services Memorial Rifle Club Captain and from the Training Warrant Officer of Alpha Company, 1/19 Battalion of the Royal New South Wales Regiment.

8 Michael Halloran, the Club Captain, confirms the matters raised by Mr O’Donnell in his letter. He confirms his family situation and the fact that he was raising his daughter on his own, that he only came to the attention of the authorities because he was concerned with the moral welfare of his daughter. His licence was revoked as a consequence of the incident involving his daughter. He no longer has any contact with his daughter. As a consequence of the incident involving his daughter, his firearms and associated equipment were seized and Mr O’Donnell has not been able to participate in his chosen sport and hobby of rifle shooting. Mr Halloran stated that the Junee Rifle Club has confidence in Mr O’Donnell and recommends that his firearms licence be returned to him, because of his character and personal value to rifle shooting and because small clubs depend on volunteers to survive and flourish.

9 David Allen, the Training Warrant Officer, stated on behalf of Mr O’Donnell that he knew him as a professional soldier, who is hard-working and dedicated and is well liked and well-regarded. He has served in the Army Reserve for 26 years.

10 On 11 March 2008 a delegate of the Commissioner of Police reviewed the decision to refuse the licence. It was noted that Mr O’Donnell was a licensed shooter for most of his life and that he had been a rifle club member for 15 years, a club captain for four years, a member of the Australian Army Rifle Association for 12 years and an Army Reservist for 26 years. Mr O’Donnell’s competitive achievements with firearms were also noted. Significant weight was also given to the two character references given on behalf of Mr O’Donnell from the Club Captain of the Junee Ex Services Memorial Rifle Club and a Training Warrant Officer. The delegate also stated that it was noted that the District Court had quashed the earlier conviction concerning the allegation of assault of Mr O’Donnell’s daughter and so, no weight was given to that earlier conviction or allegation. It was also noted the AVO was revoked by the Court. It was noted that the two year bonds had expired without further incident and that seven years had passed since the firearms and prohibited weapon offences were detected and that since then there has been no further incident. Further, that those convictions are now considered to be “spent convictions” pursuant to section 12 of the Criminal Record Act 1991. The financial loss to Mr O’Donnell with respect to the forfeiture of his weapons was also noted. The delegate however considered that Mr O’Donnell’s conduct, which gave rise to the spent convictions demonstrated that his conduct with firearms was contrary to the public interest. The delegate referred to DP –v- the Commissioner of Police (2007) NSWADR 277 in which this Tribunal found that that the conduct which gives rise to spent convictions can be considered when exercising a decision made in the public interest and that public interest concerns not only refer to protecting public safety but also ensuring that licence holders have an understanding of their obligations and the maturity to comply with the obligations. The Commissioner must be satisfied that a person is capable of meeting the safekeeping requirements set out in the legislation. Not only must the person provide the necessary physical storage requirements but must also demonstrate an understanding and acceptance of the need for strict security regarding firearms. On 23 June 2001 a number of unsecured firearms were found in the main bedroom wardrobe, two firearms were located leaning against the wall in a spare bedroom and there was a large quantity of unsecured ammunition through the house and rear sheds. The ease with which access was gained to Mr O’Donnell’s premises increased the risk to the public posed by the unsecured firearms and ammunition. Significant weight was given to Mr O’Donnell’s letter dated 25 June 2007, which contained no indication that he had accepted the seriousness of his actions or the potential risk to the public. Indeed it was noted by the delegate that Mr O’Donnell expressed his bitterness and was critical of the way the matter was handled by the police. The delegate stated that this Tribunal has held that it is the intent of the legislation to ensure that firearms are secure and there is strict compliance with the requirements.

11 The delegate formed the view that Mr O’Donnell had not taken his obligations seriously and was not convinced that Mr O’Donnell had taken responsibility for his misconduct. He noted no evidence of remorse, regret or contrition. The delegate was of the view that Mr O’Donnell’s conduct was extremely serious and related to the fundamental provisions of legislation specifically relating to public safety. The delegate stated that Mr O’Donnell’s explanation was considered but stated that it provided no adequate mitigating circumstances. Furthermore, his role as Club Captain should have made him well aware that unregistered firearms should remain with a dealer or Police until the registration process is finalised. Equally the explanation that the silencer was scheduled to return to its owner did not in the opinion of the delegate justify his retention of a prohibited weapon. The fact that Mr O’Donnell has been involved with firearms for such a long period of time means he should have been more aware than most licence holders of his legal obligations. Significant weight was given to his decision to ignore his legal responsibilities.

12 The delegate also considered the submission made on behalf of Mr O’Donnell that the firearms found outside the safe were not operational. The delegate noted that this Tribunal in Lynch –v- The Commissioner of Police (2006) NSWADT 80 stated that “Such a firearm can still be used in a hold-up or to threaten someone. A person not familiar with firearms might not make the differentiation between the operational firearm and one that had pieces missing if the firearm was pointed a them. They might reasonably believe that the rifle could cause them damage. There can be no doubt that it could give rise to an apprehension or fear of harm. The storage requirements are strict as non-compliance can easily compromise safety”. The delegate also gave weight to the fact that ammunition and an F1 booby trap belonging to the Commonwealth was found in Mr O’Donnell’s possession. Despite the withdrawal of any charges in this regard, the delegate was of the view that the only way Mr O’Donnell could have come into the possession of these items was to have stolen them as suggested by the Military Police. The delegate considered that the public interest would not be served by granting the application for the licence, because Mr O’Donnell was not cooperative with the Police and his behaviour raised doubts regarding his honesty and sense of responsibility.

13 The delegate considered that Mr O’Donnell’s misconduct with firearms was extremely serious and caused significant risk to public safety. No extenuating circumstances were provided to allow the delegate to be satisfied that the misuse of the firearms occurred for any other reason than unlawful negligence. Mr O’Donnell’s need for sporting activities and animal husbandry did not outweigh the public interest.

14 On 17 April 2008 Brian O’Donnell applied to the Tribunal for a review of a decision of the delegate of the Commissioner of Police to refuse him a category AB Firearms Licence.

Tribunal Hearing

15 In his sworn affidavit to the Tribunal, which was adopted by Mr O’Donnell, he attested to the following:

(i)Prior to the recent changes to the firearms legislation, he was a certified Firearms Safety Awareness Officer and Identifier, through the New South Wales Firearms Safety Awareness Council Limited. He has also obtained a Range Officer’s certification allowing him to run a rifle range. As the Junee Club Captain he ran the Junee range and was responsible for safety for at least a 4 year period. Despite not holding the actual certificate of certification, he did hold the pack that is provided to Firearms Safety Officers.
(ii)As an Australian Army Reservist he has been required to maintain a strong knowledge and practice in relation to weapons safety. He has never failed a weapons test.
(iii)He has completed various safety training courses to learn how to safely handle and operate different weapons. He has also completed a Safety Supervisors Course for Permanent Small Arms Ranges and also Purpose Designed Ranges.
(iv)Mr O’Donnell built a gun safe, which more than exceeded the safety requirements. He has this gun safe in his bedroom in Junee. It is made from reinforced steel and weighs about 160 kilograms empty.
(v)He has a keen interest in competitive shooting and is an avid collector and appreciator of emerging technologies in firearms. He had many rifles in each shooting discipline, in which he was interested. Many were good rifles but he also had spares. He also had 3 shotguns, which he used on the farm.
(vi)At the elite level of rifle shooting, he assembled his own ammunition to suit the particular rifle. The conditions on the day determined which weapon would be used in the shoot. He stockpiled ammunition if he found a good batch as it was cheaper to buy in bulk. Cheaper ammunition was used for practice and the more expensive and better ammunition would be saved for serious competitions. Mr O’Donnell also needed an extensive range of accessories, including sights filters, inserts, apertures and rests for competing but also for his own interest.
(vii)Mr O’Donnell purchased his various firearms through licensed firearms dealers, custom target rifle manufacturers, retired shooters, gun shows, exhibitions and classified ads. Each purchase was properly documented. Before the latest legislative changes requiring a “Permit to Acquire” a licensed shooter was able to purchase a firearm as long as it was properly documented. In the mid 1990s he purchased at least three international standard rifles from an experienced shooter, who introduced him to competitive shooting. Most of his ammunition was purchased through State Rifle Associations throughout Australia. The minimum purchase from these organizations was 1500 rounds at a time. He also regularly purchased ammunition through the Junee Rifle Club and through licensed firearms dealers, as well as the Horsley Park Gun shop.
(viii)Mr O’Donnell stated that the gun safe he used to store his firearms could hold 50 rifles if they did not have accessories attached. Mr O’Donnell had 50 rifles, some of which were completed and some incomplete, that is they were missing various parts. Mr O’Donnell stored the majority of his firearms in the gun safe. He ran out of space and in 2001 was in the process of building another safe, when the police attended the farm. This new gun safe would have comfortably held an additional 60 firearms. While this new gun safe was being built, he decided to leave out of his normal gun safe a number of firearms, which he ensured were inoperable. He stated that he purposefully removed the bolts from the firearms and placed the bolts into the internally key-locked part in the gun safe. Mr O’Donnell stated that none of the firearms were capable of being fired. This was noted in the Police Fact Sheet.
(ix)Mr O’Donnell stated that he understands now that this was not acceptable and that he needed to do more to ensure those firearms were adequately secured. He stated that he accepted responsibility for this omission. He stated he pleaded guilty to the Not Keeping the Firearms Safely Stored charge. Mr O’Donnell stated that he has since looked carefully at the legislation and stated that the mistake will not happen again. He noted that the second gun safe was not yet completed as at the date of his affidavit but he stated that if his licence is returned, he will finish building his second gun safe.

(x)He stated that as a Firearms Identifier he was able to register his own firearms. Most of his firearms were registered in this way and everything was properly documented. He stated that he had purchased new firearms and was about to register them in the same way, when the legislation changed. The new legislation required a different process of registration. It had to be done through a person who held an appropriate firearms dealer licence. Mr O’Donnell had not done this by the time the police seized his firearms.
(xi)Mr O’Donnell stated that he was in possession of a silencer, a tin of ammunition and a bolt by a person known to him as “Ray Johnson”. He stated he was asked to store the items because the owners could not store then any longer. He stated he was under the impression the owners were in a “domestic situation” and he was asked to keep them because he had a lockable safe. He stated he knew he should have handed them over to the police or not taken possession of the items.
(xii)Mr O’Donnell denies he stole any of the items in his possession. There is no link between stealing car parts 35 years ago and his firearms.
(xiii)Mr O’Donnell provided photographs of his gun safes, including the one being built. He also relied on statements from the following persons attesting to his honesty, good character, expertise with firearms, his responsible nature in that regard as well as attesting to the fact that his storage facilities for his firearms exceeded the legislative requirements. The persons attesting to his good character addressed the matters the subject of this decision.

(a) Michael Halloran – Retired Farmer and Captain of the Junee Rifle Club;

(b) Francis James Henry Rayner – Retired Motor Mechanic

(c) Peter Anthony Knight;

(d) Lieutenant Colonel Peter James Morrissey of the Royal Australian Infantry Corps;

(e) David John Parkin – Collector and Researcher of Military Arms and Equipment;

(f) Shane John Clancy – Licensed Firearms Dealer and Custom Gunsmith and June Rifle Club Member;

(g) Terence Frederick Hampton – Member of the Junee Rifle Club.

16 Mr O’Donnell gave oral evidence at the Tribunal hearing in which he confirmed his affidavit evidence. He conceded that an untutored person would see an inoperable weapon as a firearm regardless of the fact that it is inoperable and that it is not unlikely that weapons could be stolen because he was known to be a shooter. He claimed however that he kept a low profile. Mr O’Donnell told the Tribunal that the F1 booby trap was just a curiosity and that it in fact was empty and from the 1970s. Mr O’Donnell told the Tribunal that he deeply regretted his failure to secure his firearms and he now understood the seriousness of the issue. He said that this failure destroyed his shooting career. Mr O’Donnell admitted that he knew he was committing an offence when he retained possession of the silencer but he did not turn his mind to his obligations. He conceded that he continued to acquire more weapons even though his new gun safe was not yet completed. He agreed that he refused to comply with a lawful direction given by the police for him to surrender his firearms and he admitted that he felt comfortable doing so because he did not consider it to be lawful.

Applicable Legislation

17 Section 24(2)(b)(ii) of the NSW Firearms Act 1996 (the Act) provides that the Commissioner may revoke a firearms licence if the licensee contravenes any provision of the Act or the Firearms Regulation 2006 (the Regulation), whether or not the licensee has been convicted of an offence for the contravention.

18 Section 19(2)(a) of the Act stipulates that a licensee must comply with the relevant safe keeping and storage requirements is a condition of the granting and retention of a licence.

19 Section 24(2)(b)(iii) of the Act provides that the Commissioner may revoke a firearms licence if the licensee contravenes any condition of the licence.

20 Section 24(2)(d) of the Act provides that the Commissioner may revoke a firearms licence for any other reason prescribed by the Regulations.

21 Clause 19 of the Firearms Regulation 2006 stipulates that the Commissioner may revoke a licence if the Commission is satisfied that it is not in the public interest for the licensee to continue to hold the licence.

Findings and Reasons

22 The Tribunal’s task is to determine whether the Commissioner’s decision in revoking Mr O’Donnell’s Category AB licence is the correct and preferable decision having regard to all relevant material including relevant facts and applicable law: section 63 of the Administrative Decisions Tribunal Act 1997.

23 I have considered all of the material provided to the Tribunal by the parties.

24 There is no dispute regarding the critical factual matters. Mr O’Donnell does not dispute that he failed to safely store about nine firearms, that he possessed an unregistered firearm and that he possessed a prohibited weapon, being the silencer. There is no dispute that Mr O’Donnell is an avid collector of firearms and that he is very experienced in the use and handling of firearms and is proficient in weapon safety, stripping and assembly.

25 The critical issue however, in this matter is highlighted in paragraph 36 of Mr O’Donnell’s affidavit and in his evidence to the Tribunal. His decision to leave out of his gun safe several firearms is inconsistent with the strict requirements of the legislation. Someone with the level of interest and experience in guns and weapons, such as Mr O’Donnell has, should keep pace with the relevant legislation. It is worthy of note that, on his own evidence, he continued to acquire more weapons, even though he could not safely store them because his second gun safe was not yet completed. It appears that Mr O’Donnell was out of control in respect of his “hobby”. His decision to leave out weapons, even though they were in his view “inoperable” demonstrates a careless disregard for the strict requirements of the legislation and the reasons for those strict requirements.

26 The relevant legislation requires strict compliance, precisely because misuse of firearms can result in catastrophic consequences. The Tribunal has considered many applications relating to the revocation of a firearms licence where the licence holder has failed to meet the requisite storage requirements contained in Part 4 of the Act. The principles were summarised by the Deputy President in Uzelac –v- Commission of Police, Ministry of Police (2003) NSWADT 226 at paragraph 19:

9 …while there is no onus of proof on either party, 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 that take their matter outside the ordinary case. ( Phegan –v- Commissioner of Police, New South Wales Police Service (2002) NSWADT 127; Hart –v- Commissioner of Police, New South Wales Police Service (2003) NSWADT 114 [51] to [54].
- the principal issue is whether there is a risk to the safety of the public if the applicant retains the licence. ( Vella –v- Commissioner of Police, NSW Police Service (2003) NSWADT 91 at [35]. 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. ( Moody –v- Commissioner of Police, New South Wales Police (2002) NSWADT 146 at [25].

27 Mr O’Donnell himself conceded in his evidence to the Tribunal that an untutored person would see an inoperable weapon as a firearm regardless of the fact that it is inoperable and that it is not unlikely that weapons could be stolen because he was known to be a shooter. Mr O’Donnell did not, in my view, offer any reasonable explanation for his decision to leave out the nine weapons and to retain possession of a prohibited weapon and fail to register firearms. His explanations demonstrated a disregard for the legislative requirements. Moreover, he knew what his obligations were regarding the silencer but in his own words, he did not turn his mind to his obligations.

28 I have no concerns about Mr O’Donnell’s character. I accept the evidence provided on his behalf that he is a well-respected member of his community, including the shooting community. I accept that he now does regret what has happened and his failure to comply with the legislation. In my view the real issue is the safety to the public. The risk of theft was high and the seriousness of leaving firearms unsecured is significant.

29One the underlying principles of the Act is the improvement of public safety by imposing strict controls on the possession and use of firearms. The storage of firearms is not left the discretion of the licence holder. Parliament has legislated strict and detailed requirements. I am not satisfied that Mr O’Donnell’s need for the firearm to control feral or destroy sick animals outweighs the need to adhere to the strict requirements. I am satisfied that he is able to make other arrangements for the control and destruction of feral and sick animals.

30 In the matter of Wiltshire –v- Commissioner of Police, New South Wales Police (2005) NSWADT 75 the Tribunal stated:

Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them.

31 Mr O’Donnell was aware of the need to register his firearms and had in fact registered some of them. The evidence establishes that he had a lockable firearm safe and was in the process of building another one. This suggests he was aware of the safe storage requirements. In Ward v Commissioner of Police [2000] NSWADT 28 the Tribunal’s Deputy President stated at paragraphs 27 - 28:

“27 The question for the Tribunal is whether, based on all the evidence, it would have confidence that [the applicant] would not pose a risk to public safety if he had access to firearms.
28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.”

32 Although I have no concerns regarding Mr O’Donnell’s character I do have concerns regarding his level of commitment to and understanding of the obligations imposed on the holder of a firearms licence. As started by this Tribunal in Lynch –v- Commissioner of Police, NSW Police (2006) NSWADT 80 “Failure to secure firearms presents the risk that they will fall into the hands of persons who are not licensed or trained in their safe use. The facts in Rosenboom v Commissioner of Police, New South Wales Police [2006] NSWADT 10 provided a particularly tragic example of a youth suicide where a member of the licensee’s household used an unsecured firearm. In Dewar v Commissioner of Police, New South Wales Police Service [2003] NSWADT 115 a young person used the licensee’s rifle, and ammunition already loaded in the rifle, to shoot at cows in a paddock. The firearm was later given to an adult who was not licensed to possess such a firearm. There are numerous other examples that could be provided to demonstrate the potential for misuse should firearms fall into the wrong hands. Fear of repercussions may also make it unlikely that someone will report a firearm stolen if they are not licensed to own that firearm, or if the firearm was not registered. This adds a further element of risk to the public….The risk to the public is not removed simply because a firearm is not operational. Such a firearm can still be used in a hold-up or to threaten someone. A person not familiar with firearms might not make the differentiation between an operational firearm and one that had pieces missing if the firearm was pointed at them. They might reasonably believe that the rifle could cause them damage. There can be no doubt that it could give rise to an apprehension or fear of harm. The storage requirements are strict as non-compliance can easily compromise safety.”

33 It cannot be said that there is no risk to public safety so long as Mr O’Donnell lacks an understanding of the reasoning behind the registration and storage requirements. Licence holders must not only understand the laws and regulations, they must also comply. Having considered all of the evidence before me I am not satisfied that Mr O’Donnell has demonstrated a sufficient commitment to, understanding and appreciation of the importance of safe storage and the need of registration or of his obligations under the Act generally. It follows that the correct and preferable decision is to refuse Mr O’Donnell’s licence application and accordingly I affirm the Commissioner’s decision.

34 However I appreciate this decision will have adverse ramifications for Mr O’Donnell as a primary producer and as a competitive shooter. He could take steps to overcome his present lack of understanding of the statutory obligations. This would require Mr O’Donnell to at least complete to the satisfaction of the Commission firearms safety courses relevant to the licence he seeks.

Order

35 The decision of the Commissioner of Police under review is affirmed.