Peardon v Commissioner of Police

[2001] NSWADT 188

CITATION:	Peardon v Commissioner of Police, New South Wales Police Service [2001] NSWADT 188
DIVISION:	General Division
PARTIES:	APPLICANT Robert Rankin Peardon RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	013140
HEARING DATES:	21/09/2001
SUBMISSIONS CLOSED:	09/21/2001
DATE OF DECISION:	11/15/2001
BEFORE:	Higgins S - Judicial Member
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 (General) Regulation 1997 Firearms Act 1996 Administrative Decisions Tribunal Act 1997
CASES CITED:	Yaghi v Commissioner of Police, New South Wales Police Service [2001] NSWADT 91 Commissioner of Police, New South Wales Police Service v Yaghi (GD) [2001] NSWADTAP 35
REPRESENTATION:	APPLICANT L Brasch, solicitor RESPONDENT D Paterson, solicitor
ORDERS:	1 Decision of the Commissioner of Police to revoke Mr Peardon’s category A and category B licence is affirmed

BACKGROUND
1 This is an application by Mr Peardon for review of a decision by the Commissioner of Police (the Commissioner) of revoking his Category A and Category B firearms licence. The basis on which the Commissioner revoked the licence was Mr Peardon’s conviction on 3 August 2000 under Section 39 of the Firearms Act 1996 (the Act) for not keeping his firearms safely. Mr Peardon was also found guilty of common assault and placed on a 3 year good behaviour bond.

2 Mr Peardon is a farmer and resides on a rural property in the Albury region. He was issued with a Category A and Category B firearms licence on 24 November 1998.

3 On 5 September 1999 the Police were called to Mr Peardon’s home following a domestic dispute between Mr Peardon and his wife. While at the property the Police located four firearms in the home office of Mr Peardon.

4 There were two .22 calibre rifles found in the wardrobe behind some clothing. Another double barrel shotgun and a .303 calibre rifle were found in a disassembled state. One was wrapped in bed sheets and the other was in a suitcase.

5 Also found on the property was ammunition which was stored in a different locality in a locked cupboard.

6 On 5 September 1999 Mr Peardon’s licence was suspended following the issue of an interim apprehended violence order (AVO) against him. This suspension being automatic under s. 23(1) of the Act on the issuing of the interim AVO.

7 On 3 August 2000 Mr Peardon pleaded guilty to a charge of common assault and of not keeping a firearm safely. He was convicted of the firearm offence and fined $800.00 in the Local Court at Albury.

8 On 22 November 2000 the Commissioner revoked Mr Peardon’s licence and the revocation order was sent to Albury Local Area Command for personal service on Mr Peardon. This revocation order and a statement of reasons was served on Mr Peardon on 25 January 2001.

9 Following a request for internal review, on 15 March 2001 a delegate of the Commissioner and decided to affirm the decision of the Commissioner. Mr Peardon was not served with a copy of the new decision until 1 June 2001 and subsequently lodged an appeal with the Tribunal.

RELEVANT LAW
10 The Commissioner’s power to revoke a licence is contained in Section 24 of the Act. So far as they are relevant to this case the grounds for revocation are:

24(2) 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, or
(b) if the licensee:
(ii) contravened any provision of this Act or the regulations , whether or not the licensee has been convicted of an offence for the contravention, or
(iii) contravenes any condition of the licence, or
(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence.
(emphasis added)
11 Section 11(5) provides that a licence must not be issued to a person who:
(a) is under the age of 18, or
(b) has, within the period of ten years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under the New South Wales law, or
(c) ...
12 The offences which are prescribed pursuant to Section 11(5) of the Act are contained in clause 5 of the Firearms (General) Regulation 1997 . This clause provides that a prescribed offence includes an offence, relating to the possession or use of a firearm, or any other weapon, committed under the law of any Australian jurisdiction (clause 5(a)(i)). Mr Peardon’s conviction under s.39 of the Act is such an offence. Accordingly, if Mr Peardon were making an application for a licence the Commissioner would be required to refuse that application on the basis of this conviction. However, s.24(2) gives the Commissioner a discretion in the case of a revocation of a firearms licence.

13 The relevant requirements of safe storage of firearms are contained in s.40 of the Act and s.19(2)(a) provides that a condition of a licence is that the licensee must comply with the safe keeping and storage requirements under the Act.

EVIDENCE AND FINDINGS OF FACT
14 Mr Peardon relied on his Affidavit filed on 22 August 2001. With the exception of his continued residence on the property the matters set out in that Affidavit were not challenged by the Respondent.

15 Mr Peardon also gave oral evidence and was cross examined by Ms Patterson who appeared on behalf of the Commissioner.

16 In addition to this evidence, Mr Peardon tendered into evidence four references which had been forwarded to the Commissioner for the purpose of the review of his decision. He also tendered an additional reference from Jo Johnson dated 20 September 2001.

17 From the abovementioned evidence I find the following facts:

• Mr Peardon has continued to reside at his property since 9 September 1999 even though he has not been there the whole time. The property is a sheep farm with two houses on it. Since the break up of his marriage he has resided in the cottage on the property and his wife resides in the family home. They have 3 children aged 10, 12 and 13. The children reside 40% with the applicant and the remainder with his wife.
• Mr Peardon grew up on a farm and firearms have been part of his life in managing the day to day work of the animals on the property.
• Mr Peardon continues to have animals on his property including ewes and lambs. He has previously used his firearms to kill ill and injured farm animals and to control wild dogs and feral pigs that come onto his property.
• Mr Peardon is held in high regard in the community and he has been actively involved in community activities as a councillor on the Local Council and as a member of the Bushfire Brigade.
• When the police were at his property on 5 September 1999 Mr Peardon falsely stated to the police that his firearms were stored in Victoria. It was through the admissions of his wife that they were located. He recognises that this was stupid and states that he can only explain his conduct as being in response to very stressed circumstances at the time.
• Mr Peardon pleaded guilty to the charges laid against him.
• Mr Peardon admits that he knew that his firearms should be locked up and that his storage of the firearms did not comply with the safe keeping requirements under the Act.
18 The Tribunal was informed that the interim AVO against Mr Peardon remained in force and had been adjourned on 17 September 2001 by the Local Court in Albury for another 6 months.

SUBMISSIONS
19 Ms Patterson, for the Commissioner, relied on the findings of the delegate of the Commissioner in her internal review statement of reasons for revoking the licence.

20 Mr Brasch, for Mr Peardon, submitted that Mr Peardon had provided evidence to establish that he had a legitimate need for possessing and using his firearms. He required them to manage his property and not for recreational purposes. He also submitted that apart from the incident on 5 September 1999 Mr Peardon was a responsible and respected member of the community who deeply regretted his actions and understands the importance of the safe keeping provisions of the Act. He also submitted that while the storage of the firearms did not comply with the Act they were not stored in a manner that posed any danger to public safety.

21 Mr Brasch also relied on the decision of judicial member M Lees in Yaghi v Commissioner of Police, New South Wales Police Service [2001] NSW ADT 91. On the basis of their decision Mr Brasch submitted Mr Peardon’s conviction could not be the basis for a revocation of his licence as the conviction occurred after the licence had been issued.

22 At the time of the hearing of this application the decision in Yaghi was under appeal. The decision in that appeal has now been given (see Commissioner of Police, New South Wales Police Service v Yaghi (GD) [2001] NSW ADTAP 35). In that decision the Appeal Panel did not accept the interpretation of the Tribunal of s. 11(5) of the Act in so far as it related to the Commissioner’s power to revoke a licence under s. 24(2)(b). That is it found that the words “within the period of 10 years before the application for the licence was made” in s. 11(5) did not condition the powers of revocation.

REASONS AND DECISION
23 In my opinion, having regard to the objectives of the Act which includes ensuring that firearms are stored in a safe and secure manner (s.3 (2)(e) of the Act), the requirements prescribed in s.40 of the Act are fundamental in respect of the safe keeping of firearms. In this case Mr Peardon readily acknowledged that he knew what the storage requirements were under the Act and that he had failed to satisfy those requirements. His disregard for those requirements posed a potential safety risk to his children and the fact that he has had possession of and used firearm for most of his life without any recorded incident of public safety having been threatened cannot justify the failure to comply with the requirements of the legislation, which were also express conditions of his licence.

24 I accept that Mr Peardon’s needs for a firearm are not for recreational purposes and that in the course of his farming activities he may have a need for a firearm to kill ill and injured animals and to kill other wild animals who enter and damage his property.

25 However, on balance I am of the opinion his disregard for the safekeeping of his firearms and his deliberate false statement to the police about the whereabouts of his firearms is of such significance that the Commissioner’s decision is the preferred and correct decision under s.24(2)(a) and (b)(ii) of the Act.

26 In light of my findings it is unnecessary to consider the final grounds on which the Commissioner relied – namely, s.24(2)(c) that Mr Peardon is no longer a fit and proper person to hold a licence.

DECISION
27 In accordance with s.63(3)(a) of the Administrative Decisions Tribunal Act1997, the decision of the Commissioner of Police to revoke Mr Peardon’s category A and category B licence is affirmed.