Osmani v Commissioner of Police, New South Wales Police

[2005] NSWADT 155

Pending Appeal:

CITATION:	Osmani v Commissioner of Police, New South Wales Police [2005] NSWADT 155
DIVISION:	General Division
PARTIES:	APPLICANT Ferit Osmani RESPONDENT Commisioner of Police, New South Wales Police
FILE NUMBER:	033363
HEARING DATES:	21/02/2005, 31/03/2005
SUBMISSIONS CLOSED:	03/31/2005
DATE OF DECISION:	07/07/2005
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	Firearms Act - firearms licence - issue of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Firearms (General) Regulation 1997 Firearms Act 1996
CASES CITED:	Commissioner of Police, New South Wales Police v Snape (GD) [2004] NSWADTAP 15 Field v Commissioner of Police, New South Wales Police [2004] NSWADTAP 52
REPRESENTATION:	G Niven, barrister P Arden, SC, barrister P McLaughlin, solicitor
ORDERS:	The decision under review is affirmed.

1 Mr Osmani is the proprietor of the Guard Dog Training Centre. The Centre has been in operation for the last 28 years and provides fully trained guard dogs for local and overseas customers including security companies, law enforcement agencies and private businesses. Mr Osmani has applied for a permit to possess and use a Category H firearm (a pistol) under section 16 of the Firearms Act 1996 (“the Act”). Mr Osmani previously held such a permit to possess a pistol however that permit has expired.

2 The Commissioner refused Mr Osmani’s application and Mr Osmani has applied to this Tribunal for a review of the Commissioner’s decision.

3 Mr Osmani contends that he requires the personal possession and use of a pistol due to the special nature of his business. Mr Osmani's business involves the selection and training of large, powerful and aggressive dogs such as Pit-Bull Terriers, Rottweilers, German Shepherds, and Dobermans for the purpose of turning them into guard dogs. In addition to the standard guard dog training, dogs are also specifically trained to be "man stoppers" ie to immobilise a person. In the course of their training, some dogs may show dominant aggression towards each other and to their trainers. Mr Osmani says that in training the dogs he has encountered numerous dangerous and even life threatening situations and that he requires the specific use of a pistol to control aggressive dogs in those life-threatening situations.

4 Mr Osmani says that the dogs selected for training are large and naturally aggressive. In the event of an attack, the dogs exhibit speed, strength and ferocity. It is essential that quick reflexes be employed by a person to deal with a dog attack. In life threatening situations, a pistol can be kept on a person's body, be easily assessable, and used within close proximity of the target. The nature of a pistol means that a person can have access and use a pistol with one hand whereas a rifle requires both hands. He says that a rifle would be inappropriate as it is generally designed for use on long distance targets and, compared with a pistol, has a slower reaction and usage time.

5 Mr Osmani and Ms Luana Osmani provided oral evidence in support of these contentions and Mr Osmani also relies on a video recording that demonstrates his training methods.

6 The Commissioner disputes the need for a permit and contends that there would be serious risk to the public if Mr Osmani were permitted to use a pistol in the circumstances he describes as requiring such use. The Commissioner relies on the evidence of Sergeant Stephen Pearse and Senior Sergeant Peter Davis. Sergeant Pearse has been a serving member of the NSW Police for the past 22 years and commenced as an operational Police Dog Handler for the NSW Police in 1987. He is currently the Training Coordinator for the NSW Police Dog Unit. Senior Sergeant Davis is currently a Senior Sergeant and Training Coordinator with the Operational Safety Training Unit, New South Wales Police College Westmead. He has been an Operational Safety trainer for 15 years and holds a Level IV Chief Instructor accreditation in the area of Firearms, Defensive tactics and Tactical Teams training. Level IV is the highest certification within the NSW Police Service. In NSW there are only 6 instructors that hold this level of accreditation. The evidence of Sergeant Pearse and Senior Sergeant Davis supports the Commissioner’s position.

Findings

7 Section 28(g) of the Act states that the Commissioner may issue permits to authorise the possession or use of firearms in such circumstances as the Commissioner considers appropriate.

8 Section 29(1) of the Act provides that a permit must not be issued unless the Commissioner is satisfied that an 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. Section 29(4) of the Act provides that the Commissioner may refuse to issue a permit if he considers that the issue of the permit would be contrary to the public interest.

9 Further, Clause 9 of the Firearms (General) Regulation 1997 (“the Regulation”) states that the Commissioner may refuse to issue a permit if the applicant intends to possess and use the firearm for personal protection or for the protection of any other person or the protection of property. The examples that Mr Osmani provided to show circumstances in which it would be necessary to use a pistol involve the protection of other persons. Nevertheless, there is nothing in the Act and Regulation that requires the Commissioner to refuse to grant Mr Osmani a permit.

10 There is no issue as to Mr Osmani’s fitness or propriety or that he can be trusted to have possession of firearms. He in fact holds a Category AB firearms licence and possesses a long arm rifle. However, the Commissioner considers that it is contrary to the public interest to issue a Permit for the purpose of possessing and using a Category H firearm for the reason of carrying out duties as a dog trainer.

11 In Field v Commissioner of Police, New South Wales Police [2004] NSWADTAP 52 the Appeal Panel regarded the following considerations as relevant to the exercise of the power to issue a permit:

(a) whether the ‘need’ for a pistol rather than a long-arm is established. A pistol must be necessary, rather than merely desirable or convenient. The need must be real and not hypothetical based on an assumed future event;

(b) the restrictive approach found in the licensing provisions to the grant of pistols as against shot-guns and rifles;

(c) the extent to which the applicant has attempted to use alternative methods, even if less convenient; and

(d) the risk to personal safety associated with alternative methods.

12 These considerations must be balanced against the considerations of public safety and the public interest that are paramount in the Act.

Whether Mr Osmani has a need for a pistol

13 It is important to analyse what is necessary in the conduct of Mr Osmani’s business. The focus is on the type of business activity undertaken, rather than the specific way that Mr Osmani undertakes that business. Two questions are relevant - firstly, what are the core features of businesses of the type that are the subject of Mr Osmani’s application and secondly, is possession of a pistol directly required of that business?: Commissioner of Police, New South Wales Police v Snape (GD) [2004] NSWADTAP 15.

14 The core feature of Mr Osmani’s business is the training of guard dogs. As part of his operations he also has offered general dog training sessions for members of the public. The nature of the animals involved in the business and their unreliability is the basis upon which Mr Osmani seeks the issue of a permit.

15 I accept Mr Osmani’s evidence regarding the potential risks associated with the business. I also accept that he has cause for concern for the safety of his staff and the members of the public who attend training sessions that he offers for training of pets. However, I do not agree that the possession of a pistol is directly required of his business. Notwithstanding the fact that Mr Osmani considers it desirable to use a pistol, it is possible to conduct his business without one. I therefore do not believe that the use of a pistol is essential to any of the core features of his business. Accordingly it is my view that Mr Osmani does not satisfy the first of the considerations relevant to the exercise of the power to issue a permit limb of the requirements.

16 Having formed this view I need not consider the other factors that I have referred to above. However, I note that I agree with the Commissioner’s concerns in relation to the risks to public safety if a pistol were used in the circumstances that Mr Osmani has outlined as examples of his need. I also note that the Act has adopted an approach to the possession and use of pistols that makes them harder to obtain than longarm rifles. The legislature has determined that imposing strict controls on the possession and use of firearms is the best way of improving safety. The circumstances in which a permit for a pistol will be issued should be viewed with considerable caution and in light of the paramount considerations of public safety and the public interest.

17 It is my view that when the core business of Mr Osmani and his desire for a pistol in relation to that business is weighed up against considerations of public safety and the public interest, the balance falls against Mr Osmani. The correct and preferable decision in the circumstances is that Mr Osmani’s application should be refused. Accordingly, the Commissioner’s decision should be affirmed.

Order

The decision under review is affirmed.