Parisi v Commissioner of Police, NSW Police Force

[2018] NSWCATAD 155

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Parisi v Commissioner of Police, NSW Police Force [2018] NSWCATAD 155
Hearing dates:	12 July 2018
Date of orders:	23 July 2018
Decision date:	23 July 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	N Isenberg, Senior Member
Decision:	(1) The Commissioner's decision to revoke the Applicant's firearms licence is affirmed.
Catchwords:	ADMINISTRATIVE LAW – merits review - firearms licence - revocation of licence - conviction for intimidation - failure to secure firearms - public interest - discretion
Legislation Cited:	Crimes (Domestic Violence) Act 2007 Firearms Act 1996 (NSW) Firearms Regulation 2017 (NSW)
Cases Cited:	Botros v Commissioner of Police, NSW Police Service [2000] NSWADT 6 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16 Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 Kalinic v Commissioner of Police [2006] NSWADT 227 Maloney v Commissioner of Police, NSW Police (22 November 2004 unreported) Ward v Commissioner of Police [2000] NSWADT 28
Category:	Principal judgment
Parties:	Sandro Parisi (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Self-represented (Applicant) Office of General Counsel, NSW Police Force (Respondent)
File Number(s):	2018/00098148

REASONS FOR DECISION

Background

1. Sandro Parisi, the Applicant, now aged 72, has been authorised to use firearms since 31 August 1995. He has held an AB firearms licence since 23 July 2001. His stated genuine reason for possessing a firearms licence is recreational hunting/vermin control.

2. On 19 July 2017 Mr Parisi was convicted of an offence involving stalking or intimidation under the Crimes (Domestic Violence) Act 2007. As a consequence of his conviction, his firearms licence was revoked.

3. That decision was affirmed on internal review and Mr Parisi now seeks review by this Tribunal.

Relevant legislation

4. Section 24(2)(a) of the the Firearms Act 1996 (the Act) provides that a firearms licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind. Section 11(5) of the Act provides that a licence must not be issued to a person who has, within the 10 years before the application for the licence was made, been convicted of a prescribed offence. Clause 5(1)(d)(iii) of the Firearms Regulation 1996 (NSW) (Regulation) provides that an offence involving stalking or intimidation is such an offence.

5. A licence may also be revoked under s 24(2)(b)(ii) of the Act, which provides that if the licensee contravenes the Act or Regulation, whether or not the licensee has been convicted of an offence for the contravention, the licence may be revoked. The Respondent relied on the circumstances of 1 October 2016 (discussed below) in which the Applicant failed to adequately store a firearm: s 19(2) of the Act required him to comply with safekeeping requirements. It is an underlying principle of the Act to improve public safety by promoting the safe and responsible storage and use of firearms: s 3(1) of the Act.

6. The Respondent also relied on the power to revoke a licence under s 24(2)(d) of the Act in relation to any reason prescribed by the Regulation. Clause 20 of the Regulation provides that the Commissioner may revoke a licence if the Commissioner (or the Tribunal on review) is satisfied that it is not in the public interest for the licensee to continue to hold the licence.

Consideration

Mr Parisi’s conviction

7. On 19 July 2017, at Bathurst Local Court, he pleaded guilty to an offence involving stalking or intimidation and was sentenced to a section 9 bond for a period of two years. The conviction arose out of events on 1 October 2016, when Mr Parisi was involved in an incident on his property near Oberon. Tendered before me was a copy of the Agreed Facts, the subject of the guilty plea. In his evidence Mr Parisi agreed that he had been convicted of that offence but said that he had been poorly advised by his solicitor. Although he disputed aspects of the Agreed Facts, he conceded that he had said “Come here again and I will shoot you” and that he had raised his weapon.

Failure to secure weapons and ammunition

8. When Police attended Mr Parisi’s property they located his son’s double-barrelled shotgun in the house. It was unloaded but it was not stored in a gun safe. The ammunition for the gun was located in Mr Parisi’s car. Mr Parisi pointed out that both the house and the car were locked, but this is hardly the method of securing weapons and ammunition anticipated by the Act and Regulation. He said that this was the first occasion he had taken a weapon to the property, which was following an encounter with the feral dog some weeks previously. He said he would carry the gun as he made his way round the property but kept the ammunition in his pocket; it would take him only a couple of seconds to load the weapon. He said he did this because he experiences high blood pressure and the medication causes dizziness. If he passed out he might injure himself if the weapon was loaded and accidentally discharged.

9. Importantly, Mr Parisi conceded that the property had no gun safe and it was clear that the weapon and ammunition had been unsecured for at least several days. Mr Parisi also gave evidence that the property is frequented by his grandchildren; in my view, there is a very clear safety issue if a weapon were not properly secured when children are in attendance. Furthermore, Mr Parisi also gave evidence that in his absence, his property had been vandalized and had been broken into on two occasions, by persons unknown. He had not reported these events to the police. In those circumstances his unsecured weapon and ammunition could fall into the hands of intruders who may then use them to commit other offences; ensuring that firearms are stored safely, decreases that likelihood. In my view, Mr Parisi demonstrated a disregard for the strict controls and provisions of the Act and Regulation, in leaving the weapon and the ammunition unsecured.

The Tribunal’s discretion and public interest considerations

10. Had Mr Parisi been applying for a firearms licence following his conviction it would have been mandatory that such an application be refused: s 11(5)(b) of the Act and cl 5(1)(d)(iii) of the Regulation. However, the power to revoke a licence following a conviction is not mandatory: s 24(2)(a) of the Act. In Kalinic v Commissioner of Police [2006] NSWADT 227 (Kalinic) Montgomery JM, after considering Maloney v Commissioner of Police, NSW Police (22 November 2004 unreported) (Maloney) and Botros v Commissioner of Police, NSW Police Service [2000] NSWADT 6, said at [23] that it would be anomalous if a conviction, after the licence has been granted, is treated totally differently to a conviction before a licence application.. I agree with this approach.

11. In the context of a revocation under s 24(2)(a) of the Act in Maloney JM Higgins considered that it only in special or exceptional circumstances should the discretion not to revoke the licence be exercised. I turned then to consider if Mr Parisi’s circumstances could be said to be special or exceptional.

12. Mr Parisi submitted that he was in fact ‘the victim’ in the events that led to the revocation of his licence. He gave evidence that he was working behind the shed on his property when he had seen a group of 4 or 5 motorcycle riders on the nearby track through the property. He screamed after them but they did not stop. They were travelling in the direction of the gate to the property, which he had previously locked after rubbish had been dumped on the property. Knowing that they would have to turn around because of the locked gate, he took his unloaded weapon which he had near him by the shed, and went onto the track, holding the weapon, he said, by his side. The first rider stopped about 3.5–4 metres from him, and said he was a neighbour and could explain. The second rider approached him, he said, at speed, stopping only 50-60 centimetres from him. He said he was scared he was going to be struck. It was then, he said, that he raised his weapon, which caused the second rider to put his hands up. Mr Parisi said he believed the bike riders were trespassing on his property, as none of the group were the adjoining property owners who had a right of carriageway through his property via the track. The riders did not remove their helmets, and did not produce any identification when asked, and the bikes were unregistered. He thought they might be ‘criminals’, although he acknowledged two of the riders were children. Mr Parisi said although he had never seen anybody on his property he believed the riders had been there ‘many times’ before. He contended he had been threatened and was entitled to defend himself. He believed the law was wrong.

13. The Agreed Facts record that when Mr Parisi confronted the bike riders, and when it was explained where they were from had said:

I don't care. Come here again and I will shoot you.

14. When asked by police if he had pointed a firearm at anyone Mr Parisi was recorded as having stated:

Yes I did. He was on my property.

15. When asked if he stated that if they came back he would shoot them, Mr Parisi was recorded as having stated:

Yes I did. That fucking bastard. They dump cars here and wreck my land.

16. From the Magistrate’s notes at Bathurst Local Court it appears it was submitted on Mr Parisi’s behalf that all the riders were wearing helmets with visors and that he had felt intimidated when one rider rode up to him ‘at a pace’, and there had been an argument about trespass. There was no evidence or submission though that the riders, particularly the second rider, had menaced Mr Parisi as he claimed before me. This could have been raised by way of mitigation, but apparently, from the Magistrate’s notes, was not. Although I do not propose to review the availability of the so-called ‘right to self-defence’, I observe that s 418 of the Crimes Act 1900 provides that ‘self-defence’ may be raised if and only if the person believes the conduct is necessary to, relevantly, defend himself, or to remove a person committing criminal trespass to land. The conduct – here, brandishing a weapon - must be a reasonable response in the circumstances as the person perceives them. I consider that if it had been contended at the Local Court hearing that Mr Parisi was acting in self-defence, a clear reference would have been made in the Agreed Facts and in the Magistrate’s notes. It is only now that it is raised by Mr Parisi.

17. There was also no evidence to support Mr Parisi’s claim that the riders had previously been on his property, nor that they were the persons responsible for dumping cars, vandalism or thefts. These contentions could also have been raised by way of mitigation at the hearing at Bathurst Local Court. Again, it is only now that these contentions are raised.

18. On Mr Parisi’s own evidence he had never seen anyone use the track. I accept that only a limited number of persons may have had an unfettered right of carriageway through the property, and that the riders were likely to have been trespassing. I also accept that Mr Parisi was upset that his property had been used as a dumping area and been broken into by persons unknown. However, in my view, his response to the encounter with bike riders, which, on his evidence was intended to scare them and deter them from returning, was disproportionate to the circumstances.

19. For these reasons I do not consider that the discretion in s 24(2)(a) of the Act should be exercised in Mr Parisi’s favour.

20. Further, it was submitted to police on internal review that whilst Mr Parisi is a recreational hunter, he also needs a firearms licence because the property is for grazing and it sometimes contains feral predatory animals which pose a threat to livestock, and also to Mr Parisi and his family including his grandchildren. In his evidence Mr Parisi said, for the first time, that at some time in the weeks before the incident of 1 October 2016 a feral dog ‘gave him a hard time’. He explained that a wild dog bared its teeth at him from a distance of about 25-30 metres but left him alone when he picked up a branch. From then on, he decided, he would carry a weapon with him when he moved around the property. He said that there is no mobile phone reception on the property and he had concerns for his safety. This contention had not been previously made by his former solicitor.

21. When the police attended the property following the complaint by the bikers Mr Parisi was burning off – about 50 metres from the house. Contrary to his evidence that he takes the weapon with him as he moves about the property and carries the ammunition in his pocket, the weapon was located by police inside the property and the ammunition was in his car.

22. Although it had been submitted that the feral animals might pose a threat to his livestock, Mr Parisi conceded that he did not in fact have any livestock on the property at this stage. There were some goats, but these might be feral themselves, or had been left by the previous owner. He conceded he had taken no steps, such as baiting or engaging professional hunters, to rid the property of feral animals. In Kalinic, the applicant submitted that the "special circumstances" were "protecting the general fauna, the wildlife" and noted his "obligation to keep feral animals down". The Tribunal there rejected that these amounted to special circumstances. I agree with this approach.

23. As to the safety of Mr Parisi’s family, there was no evidence as to the frequency that his grandchildren attend the property, if at all. Their possible exposure to feral animals, if any, is outweighed, in my view, by the hazard of having an unsecured weapon on the property.

24. For these reasons I do not consider that the discretion in s 24(2)(b)(ii) of the Act should be exercised in Mr Parisi’s favour.

25. As to public interest considerations, in Commissioner of Police v Toleafoa [1999] NSWADTAP 9, the Appeal Panel said, albeit in the context of the licensing regime for the security industry, that the ‘public interest’ is an inherently broad concept giving the Commissioner, and the Tribunal on review, the ability to have regard to a wide range of factors in choosing whether to exercise discretion adversely to an individual: at [25].

26. The 'public interest' allows a consideration of issues going beyond the character of the Applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.

27. The underlying principles stated in s 3(1) of the Act emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 [at 23]. The principal issue in determining public safety is whether or not there is a risk to the safety of the public if the Applicant’s licence to possess firearms is returned to him.

28. I accept that Mr Parisi may find the use of firearms helpful in controlling pests on his property. His desire to assist in the control of rural pests however, does not outweigh the need for public safety and his personal interest in having his licence cannot outweigh the public interest: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [22].

29. Strict controls on the possession and use of firearms are imposed in the interests of public safety. While Mr Parisi may wish to be able scare off trespassers by brandishing a weapon, this personal interest in this regard also does not in my view outweigh the public interest.

30. In Ward v Commissioner of Police, NSW Police Service [2000] NSWADT 28 (Ward) Deputy President Hennessy made comments relevant to a consideration of whether the issue of the licence may be contrary to the public interest. The Deputy President, although dealing with the "fit and proper person" requirement elsewhere in the Act, focused on the importance of protecting public safety. At [28] she said the Tribunal must be satisfied that there is “virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would not pose any risk to public safety. I cannot be so satisfied.

Decision

1. The Commissioner's decision to revoke the Applicant's firearms licence is affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 23 July 2018