Osborn v Commissioner of Police, NSW Police

[2007] NSWADT 126

CITATION:	Osborn v Commissioner of Police, NSW Police [2007] NSWADT 126
DIVISION:	General Division
PARTIES:	APPLICANT Richard Osborn RESPONDENT Commissioner of Police, NSW Police
FILE NUMBER:	063316
HEARING DATES:	16 February 2007
SUBMISSIONS CLOSED:	16 February 2007
DATE OF DECISION:	14 June 2007
BEFORE:	Montgomery S - 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 Crimes (Sentencing Procedure) Act 1999 Firearms (General) Regulation 1997 Firearms Act 1996
CASES CITED:	Bevan v The Commissioner of Police [2004] NSWADT 1 Bottomley v The Commissioner of Police [2005] NSW ADT 211 Coates v Commissioner of Police [2001] NSWADT 5 Cusumano -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 50 Hill -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 Lynch v Commissioner of Police NSW (GD) 2006 ADTAP 43 Uzelac -v- Commissioner of Police, Ministry of Police [2003] NSWADT 226 Ward v Commissioner of Police NSW Police (2002) NSWADT 28 Wiltshire v Commissioner of Police [2005] NSWADT 75
REPRESENTATION:	APPLICANT M Bowe, Solicitor RESPONDENT W Pisani, Solicitor
ORDERS:	The decision of the Commissioner of Police, New South Wales Police to revoke Mr Osborn's licence is affirmed.

Background

1 Mr Osborn has applied to this Tribunal for the review of the Commissioner's decision to revoke the Category AB firearms licence he held under the Firearms Act 1996 (“the Act”).

2 Two firearms were stolen from Mr Osborn’s property at Glenorie on 26 or 27 February 2005. The firearms were usually kept in a properly designated safe in a shed on the property. The shed was approximately 500 metres from the entrance gate to the property and out of public view. The firearms were taken during a very narrow 1-hour window of opportunity when they were unsecured. Mr Osborn had been cleaning the guns and merely walked to the nearby house. When he returned within the hour he found the weapons had been stolen.

3 Mr Osborn appeared before Parramatta Local Court on 20 June 2005 on a charge of 'Not keep firearm safely-not prohibited firearm/pistol'. He was found guilty of this offence but the Court did not to record a conviction, and instead placed Mr Osborn on a bond to be of good behaviour for a period of 12 months as permitted by section 10 of the Crimes (Sentencing Procedure) Act 1999.

4 On 19 April 2006 the decision was taken to revoke Mr Osborn’s licence. A delegate of the Commissioner affirmed the decision after an internal review. The decision relied on two alternative powers:

(i) The power given by section 24(2)(b)(ii) providing that a licence ‘may be revoked’ if the licensee ‘contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention’.

(ii) The power given by clause 17 of the Firearms (General) Regulation 1997 providing 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’.

5 Mr Osborn then applied for review of the determination by this Tribunal.

Mr Osborn’s case

6 Mr Osborn provided a statement and also gave oral evidence before the Tribunal. He stated that he has been the owner of a firearm since he was ten years of age in New Zealand. He is now 58 years of age. After he came to Australia in 1969 he obtained various forms of firearms licences. He had a pistol licence between 1973 and 1978 and he shot competitively with the New South Wales Pistol Club. He has held a shooters licence from 1980 until 1998 and thereafter has held a category AB firearms licence until it was revoked in April 2006. He says that at all times he kept his firearms at Glenorie and denies the police assertion that the firearms were kept at Cammeray. He has two convictions for drink driving offences, both of which occurred 18 years ago. He has no other convictions.

7 Mr Osborn says that his firearms were normal secured in a firearms safe but that at the time of the theft in February 2005 they were sitting on the back of a 4 wheel drive bike in a shed n the property. The area from which the firearms were stolen was difficult to access being 500 metres from the roadway. He had taken two firearms out of the safe to clean them. Two other firearms remained in the safe. He left the shed and walked to the nearby house without returning the firearms to the safe. When he returned within the hour he found the weapons had been stolen.

8 Mr Osborn stated that the stolen firearms were antiques. He provided registration certificates for the two stolen firearms and he denied the police assertion that they cannot be identified. He says that the firearms that are the subject of this case are identifiable and are traceable as indicated by the registration. He denies the assertion in the facts sheet that the second stolen firearm was unregistered and says it is not true. In relation to that firearm he says that the police suggested to him that they should forget about it however he was not of that mind. As to the assertion that a firearm was sold in 2005 he says that no firearm was sold.

9 A few months before the theft of the firearms, sometime between 25 and 29 August 2004, there had been a break-in at Mr Osborn’s property during which goods were stolen. As a consequence of that break in he has installed additional security. This included new gates, security camera on the main drive and the use of a security firm. He provided photographs to indicate the current state of the property and the relative location of the shed, the driveway and the front gate.

10 Mr Osborn also relies on a testimonial provided by Mr Ian Kiernan, Chairman of Clean Up Australia Ltd and Clean Up the World. Mr Kiernan stated that he has known Mr Osborn for more than 30 years. He says that Mr Osborn was a long serving board member of Clean Up Australia and Clean Up the World making significant contributions in time and money to both organisations. He has also known Mr Osborn socially and as a partner and opponent in a variety of sporting events including that of sports shooting and feral pest eradication. He says that he has observed that Mr Osborn is fastidious in relation to the maintenance and safety of firearms. He is a most responsible person and treats firearms with the respect that they deserve.

Mr Osborn’s submissions

11 Mr Bowe appeared for Mr Osborn and provided written submissions in support of Mr Osborn’s application. Mr Osborn submits that he has been a long-term law abiding citizen. While he has two convictions for drink driving offences they were recorded in 1986 and he has not been convicted of any other criminal offence.

12 He says that his firearms were stored at his house at Glenorie. He denies the conversation with police that is purportedly outlined in the police events reference number E19685550, which suggests that his firearms were stored at Cammeray. While he concedes that there was a conversation following a routine check of the licence, he says that the police interpretation of that conversation is incorrect. He submits that the police never understood the fact that the guns were being held at Glenorie.

13 Mr Osborn acknowledged that the two firearms that were stolen from the Glenorie property were not held in their normal position in a firearms safe but were sitting on the back of a four wheel drive bike for a period of one hour. He says that it is not the case that the firearms could not be identified and denies that any of the firearms had been sold.

14 Mr Osborn referred to the Magistrate’s decision to dismiss the charge without conviction. He says that the Magistrate was privy to the facts, circumstances and submissions of the various parties in reaching that decision and submits that it reflects the degree in which the Magistrate perceived the seriousness of the matter. He says that he has been vigilant in regard to his security and the security of his firearms. He is conscious of the legislation and of his responsibilities to store his firearms with safety and anxious to comply. The shed in which the firearms were stored was 500 metres from the gates entering on to the property. The firearms were held in a secure safe. They were clearly not taken on any previous occasion and on this occasion were only left alone for a short period. He says that the stolen firearms are antique single barrel shot guns. He submits they are not the type of firearms that criminals would readily desire albeit they were stolen.

15 In relation to the Commissioner’s assertion that Mr Osborn was not cooperative in relation to the service of the notice of revocation and the seizure of firearms he says that the police were confused as to where the firearms were located and they attempted to contact him at his Cammeray address whilst he was at Glenorie. A message was left at his phone at Cammeray and when he heard the message he contacted the police and again advised them that the firearms were at Glenorie. In dealing with the police Mr Osborn had relied on legal advice that he had received which was to the effect that that the revocation of his licence was unlawful.

16 Mr Osborn submits that he was not negligent and at all times had his firearms registered in accordance with the Act. He was conscious of his obligations and secured the firearms in a safe and has added further security as indicated above. The area where the firearms were stolen was difficult to access being 500 metres from the roadway. Mr Osborn understands that having a firearm licence is a privilege and he is proud to be the holder of such a licence with responsibilities that fall upon him as a consequence of that fact.

17 Mr Osborn submits that due to his good character and his diligent behaviour in relation to firearms over a period of 30 years (except for the one incident), the Tribunal could be satisfied that there is not a risk to the safety of the public if he retains his licence.

18 Mr Bowe referred to the Appeal Panel decision in Lynch v Commissioner of Police NSW (GD) 2006 ADTAP 43 where the Appeal Panel stated at paragraph 37

37 Once the circumstance to which s 24(2)(b)(ii) is directed (contravention) is present, the Commissioner ‘may’ revoke the licence. No guidance is given in the provision as to what factors might be relevant. Without seeking to be exhaustive, relevant factors would, we think, include the gravity of the contraventions, any history of contraventions, mitigating circumstances and general public policy considerations.

19 Mr Bowe submits that the actions of Mr Osborn amount to an error of judgement taking into account the surrounding circumstances, the small amount of time in which he had left the firearms and the remote location. There are no prior contraventions.

20 In relation to the issue of public safety Mr Bowe referred to the views of Hennessy DP in Ward v Commissioner of Police NSW Police (2002) NSWADT 28 where she stated at [28]:

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.

21 He submits that the Tribunal would be satisfied that there is virtually no risk to public safety if Mr Osborn were given access to a firearm. Mr Osborn is now 58 years of age. He has been the owner of firearms and had licences for a substantial period of time. In that period of time there has only been one lapse. He submits that this failure was an error in judgement. The Tribunal would take into account the location, that the firearms were kept in a shed 500 metres from the entrance of his property, that the property is located in bushland, and that Mr Osborn had been cleaning the firearms and they were only left for a short period of time. Mr Osborn’s other two firearms were kept in the safe. His actions were an aberration in the diligent manner in which he has proceeded with his responsibility of storing his firearms and he did not show disregard for the legislation.

22 He further submits that Mr Osborne has an understanding of the importance of safe storage and the likelihood that his firearms will not be stored safely in the future is non existent and that should the Tribunal exercise its discretion to not revoke Mr Osborn's licence it would be within the context of the nature of the conduct and the principles and objects of the Act.

The Commissioner’s case

23 The Commissioner relies on a brief of evidence that sets out the background to the charges and the Courts’ findings. He contends that because of Mr Osborn’s breach of the legislation and the risk to which the public has become exposed, the Tribunal should conclude that it is not in the public interest for him to continue to hold a firearms licence.

24 Mr Pisani adopts the reasoning provided as a basis for the internal review decision. He refers to the legislative policy behind the registration and storage provisions set out in the Act and to a number of authorities that have considered those provisions.

25 Mr Pisani refers to views that I expressed in Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75 at paragraph [25]:

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.

26 Mr Pisani also refers to Bottomley v Commissioner of Police, New South Wales Police [2005] NSWADT 2 as supporting the principle that if a licence holder does not have sufficient appreciation of the importance of safe storage, the Tribunal would not be confident that their firearms will be stored safely in future. There should be no looking below the standard set by the Act for safe storage as non- compliance runs the very real risk of the firearms being stolen.

27 He submits that contraventions in respect of failing to meet the safe storage requirements as set out under Part 4 of the Act are fundamental in their nature in that they are contraventions which go to the crux of the principles and objectives of the Act. In Bevan v The Commissioner of Police [2004] NSW ADT 1 Higgins JM stated at paragraph 26:

26 … contraventions in respect of failing to meet the safe storage requirements as set out under Part 4 of the Act are fundamental in their nature in that they are contraventions, which go to the crux of the principles and objectives of the Act. Parliament has emphasised the fundamental nature of such contraventions, if proven and a conviction is recorded, by prohibiting the Commissioner from issuing a firearms licence to the convicted person for 10 years after the conviction was entered into (see s. 11(5)(a) of the Act and cl 5(a) of the Firearms (General) Regulation 1997). Similarly, where a licence holder is convicted of such a contravention the Commissioner is required to revoke the licence of that licence holder (s. 24(1A) of the Act). However, where a contravention has been proven without a conviction having been recorded, Parliament has given the Commissioner a discretion as to whether to revoke a licence. In the opinion of the Tribunal, this discretion does not alter the fundamental nature of a contravention, particularly where a court has made a finding of guilt. In the opinion of the Tribunal, in those circumstances, on a proper construction of the Act, Parliament has given a clear indication that the Commissioner is to revoke or refuse a licence, unless the Commissioner is satisfied that the contravention was merely a technical breach, the conduct posed no risk to public safety and there was no evidence that the licence holder or applicant for a licence would in future engage in conduct that posed a risk to public safety (see s3(1)(1)(a) of the Act).

28 Mr Pisani submits that Mr Osborn’s breach is not technical but is of a fundamental nature and placed public safety in danger. He says that Mr Osborn was aware of his obligations but made a conscious decision not to store his firearms correctly. A few months before the theft of the firearms there had been a break-in at Mr Osborn’s property during which goods were stolen. This should have alerted Mr Osborn to the risk of further incidents. Mr Pisani submits that there was clearly a risk of theft as the firearms were in fact stolen, and the firearms are now at large. It is possible that they are in the possession of a person who does not hold a firearms licence.

29 It is common ground that Mr Osborn did not report the theft for a couple of days. Mr Pisani submits that if he had appreciated the significance of the matter he would have contacted the police earlier. The delay in reporting the theft meant a greater risk to the community and lowered the chances of recovering the stolen firearms.

30 The Commissioner contends that notwithstanding Mr Osborn’s good character and his good works in the community, he has not acted responsibly regarding firearms and consequently he has forfeited the privilege of a firearms licence. He points to the decision in Hill -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 where Britton JM accepted the Commissioner’s submission that:

… notwithstanding the applicant’s good character given the seriousness of the incident the public interest dictates that a decision maker err on the side of caution and, in effect, guarantee, by the revocation of the licence, that a similar incident will not be repeated.

31 Accordingly, Mr Pisani submits that in the circumstances the correct and preferable decision is that Mr Osborn’s licence should be cancelled. Therefore the decision under review should be affirmed.

Findings and Decision

32 The Tribunal’s task is to determine whether the Commissioner’s decision is the correct and preferred decision having regard to the material before it including the relevant facts and the applicable law: section 63, Administrative Decisions Tribunal Act 1997.

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

34 Clause 17 of the Firearms (General) Regulation 1997 (Regulation 19 of the Firearms Regulation 2006) provides 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.

35 I have considered all the material that has been provided by the parties. The ultimate issue is whether, having regard to all the relevant circumstances, the Commissioner was correct in exercising his discretion to revoke Mr Osborn’s firearms licence.

36 It is common ground that Mr Osborn was the owner of two firearms which were stolen on 26 or 27 February 2005 and that the firearms were unsecured at the time of theft. He was found guilty of an offence in relation to the incident and was placed on a bond to be of good behaviour for a period of 12 months and his firearms licence was subsequently revoked.

37 In Coates v Commissioner of Police [2001] NSWADT 56 the Tribunal held that the decision maker would be justified in refusing a licence if there is evidence sufficient to give rise to a finding that a licence holder may not personally exercise continuous and responsible control over firearms in the absence of convictions of a criminal offence or evidence that a firearm has been used irresponsibly or unsafely.

38 The ‘interest’ under consideration is the interest of the public as distinct from the interest of an individual or individuals. The Commissioner argues that the community could not be confident that public safety would not be jeopardised should Mr Osborn be given the privilege of holding a firearms licence.

39 The Act does not list the factors that a decision maker must take into account when deciding whether to revoke a person's licence. In those circumstances the discretion should be exercised in a way which takes into account all relevant considerations including the principles and objects of the Act. The principles of the Act are set out in section 3:

(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.

40 The legal principles that apply to the revocation of a firearms licence have been set out in previous decisions of this Tribunal. Deputy President Hennessy provided the following summary of the principles in Uzelac -v- Commissioner of Police, Ministry of Police [2003] NSWADT 226:

… 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] NSW ADT 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])

in relation to the first three considerations, if the breaches of the Act or regulations are trivial or excusable, as distinct from fundamental, there is less likelihood of a risk to public safety (Cusumano -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 50)

the discretion to revoke a licence must be exercised keeping in mind the nature of the conduct and the principles and objects of the Act; (Yaghi -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 91 at [37].

41 As noted above, the Appeal Panel considered the issue more recently in Lynch and noted that relevant considerations include the gravity of the contraventions, any history of contraventions, mitigating circumstances and general public policy considerations.

42 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 Act, Parliament did not leave the manner in which firearms are to be stored to the discretion of licence holders but imposed detailed requirements on all licensees. The risk associated with failure to comply with safe storage requirements has been highlighted in many decisions of this Tribunal. It has often been stated that responsibilities extended to licence and permit holders are of a serious nature and the holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them.

43 There are a number of factors relevant to this matter that I have taken into account. These include

(a) the general public policy and safety considerations;

(b) the gravity of Mr Osborn’s contraventions;

(c) Mr Osborn’s otherwise good character;

(d) the circumstances of the theft;

(e) Mr Osborn’s knowledge of the relevant legislative requirements;

(f) Mr Osborn’s commitment to never re-offending and the likelihood of future breaches of the legislation;

(g) Mr Osborn’s practical needs for the licence; and

(h) the period that has passed since the revocation.

44 I have no concerns about Mr Osborn’s character. This is the only offence (or adverse notification) in Mr Osborn's otherwise unblemished history in dealing with firearms. He says, and I accept, that he is contrite and regrets the incident. He claims that there is no chance of a repeat offence or of any offence relating to firearms. There is character evidence before the Tribunal that attests that Mr Osborn is unlikely to re-offend and/or act in an inappropriate way in the use and possession of firearms.

45 It is impossible to say with absolute certainty how any individual will behave in the future. I share the Commissioner concern that Mr Osborn's serious lack of judgment and failure to properly supervise his firearms may be repeated. He contends that, notwithstanding Mr Osborn's good character, the public interest dictates the revocation of the licence. I agree with that contention.

46 The evidence shows that there had been a break-in at Mr Osborn's property only a few months prior to the theft of these firearms. That should have alerted him to the risk of further theft. His lack of judgment suggests that he was not fully aware of the risk or the potential consequences of his actions. This view is reinforced by his delay in reporting the theft to the police.

47 Section 37 of the Act provides that if a firearm is stolen the person in whose name a firearm is registered must immediately notify a police officer of the theft of the firearm. It is not disputed that Mr Osborn delayed in contacting the police. In my view this suggests that he did not understand the significance of the theft and the fact that the firearms were then in the hands of a criminal.

48 I have taken into account Mr Osborn's evidence and the detailed submissions presented on his behalf. In particular I note that he has taken additional steps to secure his property since the thefts. Nevertheless, I am not satisfied that the there are persuasive and relevant considerations that take this matter outside the ordinary case.

49 I agree with the view of Britton JM in Hill where she observed that ‘a decision maker should not shy from an exercise of that discretion merely on the grounds that the licensee may suffer hardship and or inconvenience.’ Despite the fact that Mr Hill has shown genuine contrition and acknowledges the seriousness of the matters, I am not satisfied on balance that that conduct and or similar conduct will not be repeated. Mr Osborn would need to take further steps to increase his awareness of the issues raised in this matter before I could be satisfied that this was not a real possibility. Accordingly taking into account all relevant considerations, in my view it is not in the public interest for him to continue to hold a firearms licence.

Order

The decision of the Commissioner of Police, New South Wales Police to revoke Mr Osborn's licence is affirmed.