Pennington v Commissioner of Police, New South Wales Police
[2004] NSWADT 44
•03/05/2004
CITATION: Pennington v Commissioner of Police, New South Wales Police [2004] NSWADT 44 DIVISION: General Division PARTIES: APPLICANT
Warren Eric Pennington
RESPONDENT
Commissioner of Police, New South Wales PoliceFILE NUMBER: 033252 HEARING DATES: 26/11/2003 SUBMISSIONS CLOSED: 11/26/2003 DATE OF DECISION:
03/05/2004BEFORE: Montgomery S - Judicial Member APPLICATION: Firearms Act - firearms licence - issue of licence or permit - Firearms licence - issue of licence or permit - Firearms Act - firearms licence - revocation of licence or permit - Firearms licence - revocation of licence or permit MATTER FOR DECISION: Prinicpal matter LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Crimes (Sentencing Procedure) Act 1999
Firearms (General) Regulation 1997
Firearms Act 1996CASES CITED: McDonald v Director General of Social Security (1984) 1 FCR 354 REPRESENTATION: APPLICANT
S Collins, solicitor
RESPONDENT
D Paterson, solicitorORDERS: 1. The Commissioner’s decision to revoke Mr. Pennington’s Category AB firearms licence is affirmed; 2.The Commissioner's decision to refuse Mr. Pennington’s application for a Firearms Dealer licence is affirmed
1 These proceedings relate to two decisions dated 20 June 2003 by a delegate of the Commissioner of Police, NSW Police Service (“the Commissioner”). The first of those decisions was to revoke the Category AB firearms licence held by Mr Warren Pennington under the Firearms Act 1996 ("the Act"). The second decision was to refuse an application by Mr Pennington for a Firearms Dealer licence.
2 Mr Pennington had previously held a Category AB firearms licence that was issued on 18 February 1998 and renewed on 17 March 2003. This licence was due to expire on 17 March 2008 however, it was revoked on 20 June 2003. That revocation followed a hearing in the Inverell Local Court on 29 May 2003 in which Mr Pennington was found guilty of an offence of “Not Keep Firearm Safely”. The offence was found proven but no conviction was recorded pursuant to section 10 of the Crimes (Sentencing Procedures) Act 1999. This finding was in relation to a break, enter and steal incident that occurred at Mr Pennington’s premises on 29 April 2003 during which a firearm, an air rifle, was stolen. Sometime between 9:00 a.m. and 5:00 p.m. on that day unknown persons entered Mr Pennington’s premises through a smashed window. They then stole, amongst other items, a firearm that was left on the kitchen table.
3 On 15 April 2003 Mr Pennington lodged an application to be issued with a Firearms Dealer licence and nominated himself as the licence holder to the business 'Gratyns Sporting Goods'. This application was refused on 20 June 2003.
4 By letter dated 17 July 2003 Mr Pennington’s solicitor wrote to the Commissioner’s delegate and requested internal reviews of the decisions to revoke his licence and to refuse his application. Those reviews were finalised on 13 August 2003 and the original decisions were affirmed.
5 The Commissioner's delegate who made the decision gave detailed reasons for the decisions and Mr. Pennington was notified of the outcome of the reviews and those reasons.
Reviewable decisions
6 The reviewable decisions are those of the Commissioner to revoke Mr. Pennington’s Category AB firearms licence and to refuse his application. refuse Mr. Pennington’s application for a Firearms Dealer licence. On 11 September 2003 Mr. Pennington applied to this Tribunal for review of the Commissioner's decisions. The matters were listed before me on 14 October 2003 at which time I made directions for the filing of documents and the matter was listed for hearing at Armidale on 26 November 2003.
Nature of proceedings
7 The Tribunal undertakes a review of the merits of the original decisions, with the obligation to reconsider all the material first considered, together with any further relevant material, so as to either confirm the original decisions, vary them, or set them aside and substitute another. “The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view was objectively the right one to be made” (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77).
8 These are not adversarial proceedings in which Mr. Pennington carries an onus of proof. Mr. Pennington, by making the application, triggers a process of merits review by the Tribunal. Mr. Pennington does not take on the responsibility of having to prove a case, nor does he cause the Commissioner to have to prove a case. Mr. Pennington and the Commissioner are before the Tribunal as parties by virtue of section 67(2) of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”).
9 Section 63(1) of the ADT Act provides that in determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. It makes its own decision in place of the Commissioner's, and “there is no presumption that the decision of the [Commissioner] is correct” (McDonald v Director General of Social Security (1984) 1 FCR 354 at 357).
10 When there is a fact in issue as to the existence of which the Tribunal must be satisfied, it must be satisfied to the civil standard of proof, that is, on the balance of probabilities (McDonald at 357).
Applicable Legislation
11 Section 63 of the ADT Act provides for the approach to be taken by this Tribunal in determining an application for a review of a reviewable decision. Section 63 provides:
- “ 63 Determination of review by Tribunal
(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
- (a) any relevant factual material,
(b) any applicable written or unwritten law.
(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:
- (a) to affirm the reviewable decision, or
(b) to vary the reviewable decision, or
(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or
(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.”
12 The legislation of most relevance to these proceedings is the Act and the Firearms (General) Regulation 1997 (“the Regulation”). The objects of the Act are set out in section 3 which, insofar as is relevant to these proceedings, provides:
- “3 Principles and objects of Act
…
(2) The objects of this Act are as follows:
…
- (e) to ensure that firearms are stored and conveyed in a safe and secure manner”.
13 Section 7(1) of the Act provides that a person must not possess or use a firearm unless the person is authorised to do so by a licence or a permit.
14 Section 11 of the Act provides for general restrictions on the issue of licences as follows:
- “ 11 General restrictions on issue of licences
(1) The Commissioner may issue a licence in respect of an application, or refuse any such application.
(2) ...
(3) A licence must not be issued unless:
- (a) the Commissioner is satisfied that the 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, and
(b) …
(c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and
(d) ...
…
(7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest”.
15 A licence is held subject to conditions. Section 19 of the Act sets out conditions relevant to these proceedings as follows:
- “ 19 Conditions of licence
- (1) A licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose.
(2) Without limiting subsection (1), each licence is subject to the following conditions:
- (a) the licensee must comply with the relevant safe keeping and storage requirements under this Act,
…”
16 The relevant safe keeping and storage requirements are set out in Part 4 of the Act as follows:
- “ Part 4 - Safe keeping of firearms
39 General requirement
(1) A person who possesses a firearm must take all reasonable precautions to ensure:
- (a) its safe keeping, and
(b) that it is not stolen or lost, and
(c) that it does not come into the possession of a person who is not authorised to possess the firearm.
Maximum penalty: 50 penalty units or imprisonment for 2 years, or both, if it is established beyond reasonable doubt that the firearm concerned was a prohibited firearm or a pistol, or 20 penalty units or imprisonment for 12 months, or both, in any other case.
40 Category A and category B licence requirements
(1) The holder of a category A or category B licence must comply with the following requirements in respect of any firearm to which the licence applies:
- (a) when any such firearm is not actually being used or carried, it must be stored in a locked receptacle of a type approved by the Commissioner and that is constructed of hard wood or steel and not easily penetrable,
(b) if such a receptacle weighs less than 150 kilograms when empty, it must be fixed in order to prevent its easy removal,
(c) the locks of such a receptacle must be of solid metal and be of a type approved by the Commissioner,
(d) any ammunition for the firearm must be stored in a locked container of a type approved by the Commissioner and that is kept separate from the receptacle containing any such firearm,
(e) such other requirements relating to security and safe storage as may be prescribed by the regulations.
(2) A licensee does not have to comply with the requirements of this section if the licensee satisfies the Commissioner that the licensee has provided alternative arrangements for the storage of firearms in the licensee’s possession that are of a standard not less than the requirements set out in this section.”
17 The Regulation makes provision for the issue of a licence only if the applicant understands the requirements of the Act concerning firearm safety and storage. Clause 7 of the Regulation provides:
- “7 Licence applicant's understanding of requirements concerning firearm safety and storage
Before being issued with a licence, the applicant must prove to the Commissioner's satisfaction:
- (a) that the applicant is aware of, and understands, the requirements of the Act concerning firearm safety and storage, and
(b) that the applicant will, if issued with a licence, be able to comply with those requirements.”
18 The power of the Commissioner to revoke a firearms licence is set out in section 24 of the Act as follows:
- “ 24 Revocation of licence
(1) A licence that authorises a person to possess or use a firearm is automatically revoked if the licensee becomes subject to a firearms prohibition order or an apprehended violence order.
(1A) The Commissioner must revoke a licence that is held for the purpose of employment as an armed security guard (within the meaning of the Security Industry Act 1997) if the licensee has failed to undertake any firearm safety training required under this Act or the regulations.
(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:
(i) supplied information which was (to the licensee’s knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or
(ii) contravenes 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, or
(d) for any other reason prescribed by the regulations. …”
19 The Commissioner may also revoke a firearms licence on public interest grounds pursuant to clause 17 of the Regulation. Clause 17 provides as follows:
- “17 Revocation of licence - additional reasons
In accordance with section 24(2)(d) of the Act, 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.”
20 Mr. Collins appeared on Mr. Pennington’s behalf and also provided written submissions in support of his case. Mr. Pennington’s case is that the Commissioner's decision to revoke his firearms licence was not the correct and preferable decisions because:
- i. the Commissioner's delegate failed to give appropriate weight to Mr. Pennington’s good fame and character;
ii. the Commissioner's delegate failed to give proper consideration to the facts upon which the plea of guilty was made at Inverell Local Court in relation to the firearm offence;
iii. the Commissioner's delegate failed to give appropriate weight to the Court not recording a conviction against Mr. Pennington;
iv. the Commissioner's delegate failed to take into account Mr. Pennington’s use of a firearm pursuant to the licence without blemish since 1990;
v. the Commissioner's delegate failed to take into account Mr. Pennington’s use of the firearm in relation to his rural property;
vi. the Commissioner's delegate failed to give appropriate recognition to the issues of Mr. Pennington’s independence and self reliance and the use of Firearms to enhance these personal characteristics;
vii. that it is in the public interest for Mr. Pennington to continue to hold a Firearm Licence;
viii. the fact that the firearm which was the subject of the Police Charge was an air-rifle takes the Application outside the ordinary case; and
ix. that Mr. Pennington’s has demonstrated genuine reason for maintaining the firearm including vermin control, primary production, vertebrae pest animal control and other occupational requirements relating to rural purposes.
21 Mr. Pennington’s case in relation to the second matter is that the Commissioner's decision to refuse his application for a dealer’s licence was not the correct and preferable decisions because:
- i. the Commissioner's delegate failed to give appropriate weight to Mr. Pennington’s good fame and character;
ii. the Commissioner's delegate failed to give proper consideration to the facts upon which the plea of guilty was made at Inverell Local Court in relation to the firearm offence;
iii. the Commissioner's delegate failed to give appropriate weight to the Court not recording a conviction against Mr. Pennington;
iv. the Commissioner's delegate failed to take into account Mr. Pennington’s use of a firearm pursuant to the Licence without blemish since 1990;
v. the Commissioner's delegate failed to give adequate weight to the costs incurred by Mr. Pennington in acquiring the business and in establishing an appropriate security system within his work premises for the conduct of a Firearm Dealership;
vi. the Commissioner's delegate failed to give adequate weight to the community interest in having additional competition within the township for the sale of firearms;
vii. the Commissioner's delegate failed to give appropriate recognition of the issues of Mr. Pennington’s independence and self reliance and the positive aspects of granting a Firearm Dealer's Licence to Mr. Pennington in enhancing these personal characteristics; and
viii. the Commissioner's delegate failed to give appropriate recognition of the public and community interest in having Mr. Pennington make the achievements which he has made notwithstanding his disability.
22 Mr. Collins made detailed submissions in support of Mr. Pennington’s request for an internal review of the Commissioner’s decisions. Those submissions provide a reasonable outline of the argument presented on Mr. Pennington’s behalf at the hearing. Those submissions provided:
- “ Background
1.Mr. Pennington was born on the 2nd March, 1970. In 1987 he suffered an accident at the Inverell swimming pool. From that time he has been rendered a quadriplegic.
2. Mr. Pennington received his personal Firearm Licence in 1990. This Licence is issued in relation to category A and B being for primary production and recreational purposes.
3. Mr. Pennington resides on his property situated to the west of Inverell. The property comprises 170 acres upon which he runs sixty head of cattle.
4. In relation to his use of the firearms for primary production we note that same is generally used by him for the control of feral animals, particularly foxes and rabbits. He has also had occasion to use the firearms to help control wild dogs. The other use for the firearm was for the putting down of injured or ill farm animals being considered the most humane way of such elimination.
5. Notwithstanding our client's physical disabilities he has maintained effective independence and control of his rural business. He extensively uses his vehicle and quad bike in being able to maintain mobility within his property.
6. Mr. Pennington established and remains the sole proprietor of a sporting goods retail outlet in Inverell. This business has been running for approximately years.
Conclusion
7. The purpose of the above background is to show to you that notwithstanding the obvious difficulties suffered by our client he has overcome such adversity in maintaining financial independence by way of proprietorship and management of both the rural property and the retail business.
Dealer's Licence
8. At the beginning of 2003 Mr. Pennington commenced negotiations for the acquisition of another sporting goods shop in Inverell. Those negotiations were well underway when our client suffered the break in to his premises on the 29th April. The business to be bought by Mr. Pennington was a business comprising Inverell Outdoor and Fishing Supplies. This included both extensive provision of fishing equipment together with the firearm component of that pre-existing business. In the lead up to the exchange of contracts Mr. Pennington was required to bring his own shop premises up to a sufficient standard to receive a satisfactory inspection report from the local Inverell Police Service Firearm Officer. Our client spent approximately $6,000.00 in establishing an appropriate security system within his work premises. This included provision of a mobile backup alarm monitor; the installation of security cabinets and the construction of security mesh screening at the front of the premises.
9. The Local Police Service has been more than satisfied with these developments and we understand that a very satisfactory inspection report was submitted by the Local Police Service to the Firearm Registry as part of our client's Application for the Dealer's Licence. In anticipation of the grant of the Dealer's Licence Mr. Pennington employed an extra staff member who would be able to assist with the overall business, but in particular who would be able to obtain the appropriate Authority to sell firearms in accordance with the Act.
10. Now that the other business in town has closed Mr. Pennington's business is the only specialised sporting goods shop in Inverell. You will note that the population of Inverell is ten thousand people plus a surrounding rural population service area of approximately five thousand people.
We also note that if Mr. Pennington's Dealer's Licence is not granted then there will only be one licensed Firearm Dealer in the Inverell township. It is submitted that there is a substantial public interest in Mr. Pennington's licence being granted to ensure appropriate competition within the township for firearms. We do not stress this point as obviously the main criteria will be Mr. Pennington's fitness to hold such a responsible position. We hope that we may be able to persuade you within this submission that objectively the registry could have confidence that Mr. Pennington is an appropriate person to hold a licence.
Category AB Licence
12. In relation to the Category AB Licence we note that our client has been interested in firearms since he was a young boy bought up in a rural environment. As you would appreciate he has limitations on his capacity to participate in recreational pursuits as a result of his physical condition. Recreational shooting has been a passion for nearly all of his life. In the circumstances of our submission we suggest that the Registry could be satisfied that it is in the public interest for him to maintain the right to continue that pursuit.
SUBMISSION
The thrust of the submission on behalf of Mr. Pennington is as follows:
1.Mr. Pennington has not come under adverse notice in relation to the Firearms Act or any other Act apart from the matters giving rise to the charge of not keep firearm safely.
2. The circumstances arising from that matter need to be restated. The firearm in question was an air rifle and of course same does not come within the usual category of firearms which the public would perceive to be of an obvious danger to the public.
3.The circumstances in which the firearm was left out were that our client had taken the firearm from his locked security cabinet on the morning of the incident and had forgotten to replace when he went to work in the morning.
4. That his residential premises were subsequently broken into by the smashing of a window (not an unlocked house as indicated in your letter).
5. That at the time of this incident all of the other firearms held by our client were securely locked in the storage cabinet.
6. That the storage cabinet on the property was one of the strongest and most effective security cabinets seen by the Inverell Police.
7. That our client could have adopted a less open approach by not revealing the loss of a firearm to the Police. To our client's credit he did contact the Police and made them aware not just of the break in but of the fact of the firearm being stolen. In that regard Mr. Pennington was totally cooperative with the Police in the course of their investigation.
8. That Mr. Pennington was cooperative with the Court in that he pleaded guilty to the offence. The Court clearly accepted his good character by dismissing the matter pursuant to Section 10 of the Criminal Procedure Act. As such no conviction was recorded against our client which took into account factors raised above in respect of our client's character and importantly that the oversight by the client of an unloaded air rifle, did not constitute a breach which was at the higher end of the scale of seriousness.
9. We note that in the consideration of the matter the adjudicator assessor took into account the circumstances of the earlier robbery on the 15th, 16th October, 2002. The situation on that occasion was that there was a violent break into our client's house and that his premises were then ransacked. It is not a situation where the key was left in an unsecured position. The key to the locked cabinet was found only after considerable damage had been caused to the premises by the invaders who then were able to unlock the cabinet and to remove those firearms. Obviously all owners of firearms in remote rural households are subject to the same potential threat of persons committing crimes of this nature. The situation of course would now be somewhat different for our client as he would have the well guarded and secure work premises in which firearms may be installed which provide an appropriate disincentive for other offenders in attempting to break into those premises.
Conclusion
10. There is no absolute requirement for the Commissioner to refuse to issue the Licence or to refuse to allow the Licence to continue. Discretion is permitted in reaching your determination. Accordingly it is requested that with consideration of the above factors that the Commissioner may reconsider the matter with a view to reinstating our client's Licence and to also permit the Dealer's Licence to proceed.
11.We submit that in the exercise of the discretion each of the matters should be looked at independent of the other as clearly there may be factors relevant to the continuation of the personal firearm Licence which are distinct from the Application for a Dealer's Licence.
12. It is requested that the Commissioner could have significant confidence that our client does have the attributes necessary to enable him to maintain his licence and to obtain the Dealer's Licence.”
23 Mr. Pennington provided an affidavit that was put in evidence. He appeared and gave evidence at the hearing and was subjected to cross-examination. His evidence supports the assertions made in Mr. Collin’s submissions. In his affidavit, Mr. Pennington provided evidence with respect to the two incidents which formed the basis for the Commissioner decision as follows:
- “Grounds for Revocation of Licences
19. The Firearm Registry has effectively relied on two incidents to justify the decision to revoke my Category AB Firearm Licence and also to refuse my Application for a Firearm Dealers Licence. Those two incidents related to two break-ins at my premises on the property "Gratyns" situated off the Warialda Road near Inverell.
Break in 15th October, 2002
20. On the 15th October, 2002 my premises were broken into whilst I was at work. At that time I had left for work in the morning and had returned at the end of my work day. I had not noticed at that time that the break in had occurred. The following morning however I became aware of the damage and reported the incident to the Police.
21. The property "Gratyns" is located 1.6 Kilometres off the Warialda Road. My property is at the end of the laneway. The entrance to the premises was gained through a sliding door. My firearms were located in an approved firearm's cabinet in the office which was off my bedroom. Considerable damage was done in the office, presumably with the thieves seeking out the key to my firearm’s cabinet.
22. The keys were found in a tool box underneath some household tools. I had always retained the keys in that place for safe keeping. I considered it was an appropriate place to hide the keys as it would be less likely that they would come under notice and would certainly be less likely for me to have misplaced them. I note in the Police Notice of Reasons reference was made to me keeping the key in a cash box. This is an incorrect assertion by the Police Service.
23. The only person who I had advised of the location of the key was my elder sister Debbie Radford. After the break in I had suspicions as to the source of the break in as being acquaintances of my young sister, Wendy Pennington. The Police may have misunderstood who I had informed of the whereabouts of the key. I certainly at no stage had informed my sister Wendy Pennington of the whereabouts of the key. I also submit that the fact of the damage caused to the office suggested that the thieves were certainly not aware of the location of the key and that they spent some considerable time searching for it in that room.
24. The fact that I had not noticed the break in when I came home from work was simply the fact that I had not gone into my office that night.
25. The firearms themselves were held in a superior cabinet. The folly of the cabinet in fact exceeded the type required for the category of firearms in my possession.
26. As a result of this incident no charges were laid against me in respect of the security of the key.
Break in 29th April, 2003
27. On the occasion of the second break in I was at work when the premises were entered. On this occasion the thief or thieves were unable to locate the key to the firearm cabinet. They did however take from me an air rifle and camera.
28. The circumstances of the air rifle not being secured was that I had had problems during the week prior to the break in with crows sitting on and harassing birds contained within my aviary. On the morning of the break in I had obtained the air rifle from the firearm cabinet to see if the crows were again at the aviary. As they were not there I sat the air rifle on the dining room table and then went to get ready for work. As I had no further problems with the crows that morning I simply overlooked the fact of the air rifle being out of the cabinet. When I went to work the air rifle was left in the room.
29. When I returned from work after 5 pm that day I noticed the air rifle was missing. I immediately reported the incident to the Police. I had no hesitation in reporting the matter to the Police even though I was aware that I was at fault for leaving the air rifle out of the cabinet in the morning. I fully cooperated with the Police in all aspects of their investigation.
30. The investigating Police informed me that I would be charged with failing to keep the air rifle safely secured.
31. I attended the Inverell Local Court on the 29th May, 2003 and pleaded guilty to the offence. The Magistrate found the offence proved but did not proceed to a conviction pursuant to Section 10 of the Sentencing Act.
32. I should point that the air rifle the subject of the second break in was a firearm of very low capacity. It was certainly not a weapon which would be a serious threat to the community even in the wrong hands. I recognise however my overriding obligation to ensure that firearms even of that calibre need to be kept in a secure place and I believe that I have the necessity degree of maturity and consciousness to ensure that there would be no repeat incident.
33. I should note that I have spent approximately $6,000.00 in establishing the security system at my work premises. This system includes the provision of a mobile backup alarm monitor; the installation of security cabinets and the construction of security mesh screening to the front of the premises.”
24 Mr. Pennington’s oral evidence was consistent with that statement and was not varied under cross-examination. Mr. Pennington also provided detailed evidence in relation to the financial aspects of his purchase of the business “Inverell Fishing and Outdoor World”. He gave evidence of the impact of the loss of his firearms licence on his ability to control vermin and the impact on the conduct of his business from his inability to sell firearms.
25 Mr John Coote, the Manager of Sapphire City Security, provided an affidavit in which he set out the details of the security system that Mr. Pennington has put in place at his shop and home. A report annexed to Mr. Coote’s affidavit states:
- “The security system installed is a back to base monitored system ( 24 hours per day 7 days per week) reporting alarm zone activations, shop opening and closing times, power fails and test reports to test its working integrity. It consists of five passive infrared detectors covering the front shop, middle shop, rear shop, store room and upstairs. It has an external siren with strobe light and an internal siren. The system also has a digital GSM mobile backup system that reports all events to the base station in the case of a telephone line cut or failure.
In the case of an alarm at the premises we (Sapphire City Security) respond to the alarm. Response time is between 1 to 6 minutes depending on the patrolman’s location.
3 black and white closed circuit surveillance cameras, quad processor, video recorder and viewing monitor are also installed for extra security during work hours.
Front shop doors and windows have aluminium screens secured to inside frames. Side windows have 6-8mm mesh tech screwed to frames on outside and bars bolted and welded on the inside.
Gun racks are of timber with a steel bar and padlocks securing rifles.”
26 Mr Kelvin Rainger provided a testimonial as to Mr. Pennington’s good character.
27 In addition to his written submissions referred to above, Mr. Collins made detailed oral submissions in support of Mr. Pennington’s case.
28 Mr Collins argued that all rural people are at risk of break-ins but he urged the Tribunal to consider Mr Pennington's particular circumstances. Mr Pennington's residence is situated 10 km from Inverell, 1.5 km from the open road and 1.5 km from his nearest neighbour. Mr Pennington is well-known in the local area because of his circumstances. Many people are aware of his use of firearms.
29 Mr Collins submitted that Mr Pennington was a truthful witness. The fact that he told the police the names of suspects shows his good credit. His cooperation and frankness, even where it was against his interests, is indicative of his character. He said that it is significant that no charges were brought against Mr Pennington in relation to the first incident. The matter had been thoroughly investigated by the police and Mr Pennington had given total cooperation.
30 Mr Collins urged the Tribunal, when considering the seriousness of the second incident, to weigh up the seriousness of the incident with the nature of Mr Pennington's isolated residence and the category of the firearm involved. He argued that it is significant that the air rifle is at the lower end of the scale of firearms. Mr Pennington's offence is therefore less serious than if he had failed to adequately store a high calibre firearm. Mr Collins observed that in other matters which had been determined by the Tribunal in which firearms licences had been revoked or refused because of breaches of the storage requirements, the firearms involved were of higher calibre and the offences were therefore more serious.
31 Mr Collins also submitted that in this particular matter Mr Pennington's personal circumstances warrant careful consideration. He has a genuine need for a firearm because of his rural property and the need to control vermin, primary production, vertebrae pest animal control and other occupational requirements relating to rural purposes There are no viable alternatives that would allow him to maintain this control. In addition, Mr Pennington stands to suffer significant financial loss to his business if he is unable to acquire a firearms dealer' s licence. Sale by consignment is not a satisfactory alternative. Nor would it be appropriate for Mr Pennington to have an employee hold the dealers licence for the business.
32 To refuse the issue of a licence the Tribunal must be satisfied that granting the licence would be contrary to the public interest. Mr Collins argued that the primary matter for determination by the Tribunal is the risk to the public if the licences are granted. Relevant to this issue is the likelihood of Mr Pennington repeating the conduct that led to him being charged and found guilty of the firearms offence. Mr Pennington's offence was at the low end of the scale of significance. Mr Collins referred to the evidence of the safeguards that have been put in place and stated that these are well above the legislative requirements. The Tribunal should conclude that the offence, which led to the charge against Mr Pennington, arose from what was clearly an isolated incident. This is a case where the evidence indicates that the incident is unlikely to be repeated. Consequently, he argued, it is open to the Tribunal to conclude on the evidence that there is virtually no risk to the public should Mr Pennington be granted the licences that he seeks.
The Commissioner's case
33 Ms Paterson appeared on behalf of the Commissioner. The Police Service’s file was put in evidence and the Commissioner relied on the documents contained within that file. The Commissioner’s case is essentially that outlined in the reasons provided following the internal review. There is no suggestion that Mr. Pennington is not a person of good character but rather there is a public interest issue to be considered.
34 In so far as they are relevant to these proceedings, the reasons given following the internal review and upon which the Commissioner relies provided:
- “ D. REASONING PROCESS :
The Firearms Act 1996 ('Act') sets up a scheme for licensing people to possess and use firearms. There are several provisions, which allow the Commissioner to refuse an application for a firearms licence and/or revoke a licence. I have formed the view that the legislative provisions listed above are relevant to both your matters.
After fully and independently considering all relevant matters I make the following fresh determination.
In 1996, the government enacted "tough new gun laws". One of the underlying principles of that law is to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage of firearms.
In conducting this review I have considered the submissions made by your solicitor and the facts surrounding the theft of firearms from your premises in October 2002 and again in April this year. I have then balanced these against the underlying principles and objects of the Act and for the reasons set out below I am satisfied that you have not only contravened very important safety provisions of the Act but also, because of this, I do not believe that the public could be confident in your ability to uphold the strict conditions attached to holding a firearms licence.
Firstly, I do not accept your solicitor's submission that the exercise of the discretion in each of the matters should be looked at independent of the other. This is because, in my view, the issue of public interest applies equally to your ability to continue to hold an individual firearms licence as well as to your ability to operate a Firearms dealership. Further, the fact that you have pleaded guilty to contravening an important provision of the Act gives an indication to your future ability to operate a firearms dealership, which is a very onerous position that comes with much responsibility.
In this regard, I have noted the circumstances of a break, enter and steal that occurred on 15 October 2002 at your premises during which thirteen firearms were stolen. Police report that you left your premises at around 8:45 am and went to work in the Inverell CBD returning later that evening. At approximately 7:00am the next morning (the 16th) you noticed that your firearms and 600 rounds of assorted ammunition were missing. The ammunition was stored in plastic containers on a shelf and not secured as required. The firearms were stolen from a firearms cabinet by use of the key for that cabinet. You advised police that the key to the firearms cabinet was kept in a cash box in the same room.
With respect to the key for the cabinet that housed the firearms you advised police that your sister knew of its safekeeping location. You further stated that a number of people knew that you possessed firearms. At this time you gave police a few names of people who you suspected may have committed the theft and who happened to be associates of your sister.
Police did not take any action against you in relation to the theft of these firearms or ammunition and I note that these firearms have not been recovered.
In relation to this incident your solicitor submits that this was a "violent break in" and that your premises were ransacked. Further, he states that the key to the firearms cabinet was found only after considerable damage had been caused to your premises and that it was not a situation where the key was left in an unsecured position.
This version of events differs somewhat from the facts of the incident contained in the Police report for this event. I find it difficult to accept that your premises was violently ransacked and damaged in the process of finding the key to your firearms cabinet, due to the fact that you did not notice that your firearms had been stolen until the morning after the event. It seems to me that if considerable damage had been caused in obtaining your firearms you would have noticed such damage upon your return home from work. In my view, it therefore seems more likely that the perpetrators easily obtained the key for the cabinet that housed your firearms and stole them without difficulty.
In any event, I have formed the view that you did not adequately ensure the safekeeping of the large number of firearms in your possession at that time by keeping the key to the cabinet that housed them in an undisclosed and secure place. It is my view that because your residence is a remote rural property the need to secure this key would be more so than usual. It is not unreasonable to expect that this key could have been kept on your key ring which would be on your person at all times.
Further, I note that the ammunition that was stolen was not secured as required by the Act and which is a condition imposed upon licensees. Notwithstanding that police took no action in this regard, it is clear that your firearms licence could have been revoked at that time on the basis of this contravention- however I note that you were given the opportunity to show that such a lapse would not re-occur.
I have then noted the circumstances surrounding the break, enter and steal at your premises on 29 April 2003 where a firearm was again stolen and which constitutes the offence of `Not Keep Firearm Safely' which was found proved against you in the Local Court at Inverell on 29 May 2003. The facts of this matter are that at sometime between 9:00am and 5:00pm on that day unknown persons have entered your premises through an opened window after pushing through the fly screen. They have then stolen, amongst other items, a firearm (rifle) that was left on the kitchen table.
Police subsequently interviewed you about this matter and you informed them that you had left this firearm on the kitchen table and forgot to put it away. You also advised police that you were aware of the requirement to ensure the safekeeping of your firearms and that all firearms are to be locked in an approved cabinet when not in use.
In relation to this incident your solicitor has firstly submitted that apart from the subject offence you have not come under adverse notice in relation to the Act. He further submits that the firearm that was stolen does not come within the usual category of firearms, which the public would perceive to be of an obvious danger to the public.
I do not agree with either of these submissions, as it is clear that you have previously come under adverse notice back in October 2002 with respect to the same important provisions contained within the Act. Further, I do not accept his opinion that the public would not be in obvious danger due to the category of firearms stolen as, it is my view that any firearm regardless of its type is considered an obvious danger to the public when in the possession of a person likeminded to cause harm. I do accept that the level of danger posed to the public is increased with firearms of the handgun type, merely for the fact that they are more easily concealed. However, this is not relevant in your case.
He further submits that the circumstances in which the firearm was left out were that you had taken the firearm from its locked security cabinet on the morning of the incident and had forgotten to replace it when you left your premises to go to work. Sometime later an unknown person has smashed a window of your premises and gained entry. He advises that all other firearms in your possession were securely locked in the storage cabinet, which is one of the strongest and most effective security cabinets seen by the Inverell police.
With respect to this submission, I find that regardless of how the intruder entered your premises (i.e. either through an open window or by smashing the window) and despite the standard of the firearms cabinet (which has not been substantiated by appropriate evidence from Inverell police) that housed your remaining firearms, the fact remains that you left a firearm on a kitchen table, which is now in the hands of the criminal element of the community. Moreover, it is obvious that the effectiveness of firearm cabinets is useless unless the firearms are actually contained within them.
It has been held that the public needs to be confident that firearms are being stored in accordance with the legislative requirements by those who are afforded the privilege of holding them: Morris -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 223 at para 34.
It has also been held that ensuring that firearms are stored in a safe and secure manner decreases the likelihood that they will contribute to an accidental, or deliberate injury or death: Jerry Cleofe -v- The Commissioner of Police [2001] NSWADT 2 at para 31; or, that they may be used by the criminal element in committing serious offences of violence against the community.
Further submissions have been made suggesting that you could have adopted a less open approach by not revealing the loss of a firearm to the Police. I have not placed any weight to this submission, as it is obvious that because the firearm is registered in your name you would no doubt want to avoid being linked to any possible future crimes committed involving its use. For this reason, it is a natural desire and is basic common sense for persons to report the theft of their firearms.
I accept that you were cooperative with the Court in that you pleaded guilty to the offence and that the Court clearly accepted your good character. Further, I advise that your character is not in question however, when considering the issue of public interest it has been held that it is operated in the absence of character defects with respect to exercising discretion adversely to an individual. I refer to Tolefoa v COP (2000) NSWADT 9, which provides:
- "(Public interest) is an inherently broad concept giving the appellant the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the parliament intended the public interest discretion to operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant objection. "
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. It has been held that the provision expressing the most relevant object of the Act is s3(2)(e) which states that one object is to “ensure that firearms are stored and conveyed in a safe and secure manner...”.
Further, the Deputy President in Ward v Commissioner of Police (2000) NSWADT 28 stated:
- "The public interest' in relation to the holding of a firearms licence relates to the objects and principles set out in s.3 of the Firearms Act. "
I have considered the fact that you require your individual firearms licence to continue to enjoy recreational pursuits which have been limited due to your physical condition and also because it is necessary for you to control vermin on your property. However, with respect to the latter submission I am aware that you have other options at your disposal (such as baiting, recreational hunters and the engagement of the services of a professional). I am satisfied that in this regard the need for you to retain your firearms licence is subordinate to the need to ensure public safety; Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 at 681, provides:
- "The purpose of the reference to 'public interest' is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the commissioner's consideration. The effect of the reference is to amplify the `scope and purpose’ of the legislation.
On the evidence I am satisfied that you were not diligent in your approach to ensuring that the legislative requirements imposed on you as a firearms licence holder were followed. You adopted a relatively casual approach to the safekeeping of your firearms in the face of a previous serious break and enter where you were less than diligent in the manner by which you stored ammunition and secured the key to your firearms cabinet.
Your actions were negligent to a degree that there are now more firearms on the streets, which were obtained with considerable ease and do not accord with the underlying principles and objects of the Act in improving public safety. 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 to the same.
In general, it has been held that it is not in the public interest that those people who have failed to comply with the statutory obligations to store firearms safely should continue to be afforded the privilege of holding a firearms licence: Morris v The Commissioner of Police (2002) NSW ADT at para 32.
It is clear that on the basis of your guilty plea to the offence of `Not keep firearm safely' you have contravened the Act and notwithstanding that you were not convicted of this offence, the Act clearly states that your licence may be revoked for such a contravention.
Lastly, it has been held that in the ordinary case of failure to store a firearm safely with no satisfactory explanation for that breach and no other extenuating circumstances, the Commissioner will be justified in revoking the licence: Moody v The Commissioner of Police [2002] NSW ADT 146 at para 31. 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.
Therefore, for these reasons I believe that there are no extenuating circumstances in this case, which would justify setting aside the decision to revoke your individual Category AB licence.
Application for a Firearms Dealer licence
I have placed little weight to the submissions made regarding the need for you to be granted a Firearms Dealers Licence. This is due to the fact that you have operated a sports store business in the township of Inverell for a substantial period of time prior to your desire to acquire another sporting goods shop that also happens to deal in the sale of firearms. It is clear that the refusal of your application for a Firearms Dealers licence will not in any way affect the operation of your existing sports store or the acquisition of any other sports store that does not include a firearms dealership component. Moreover, I cannot accept the submission that the refusal of this application will adversely affect the Inverell community regarding appropriate competition, as it is not unreasonable to expect that another person will act on the opportunity to acquire this firearm dealership.
I am unable to accept the submission that the Commissioner could have significant confidence that you have the attributes necessary to enable you to obtain a Dealers licence for the same reasons relied upon in upholding the revocation of your individual licence. It is of course impossible to say with absolute certainty how any individual will behave in the future. However, I remain properly concerned that your serious lack of judgment and failure to properly secure your firearms and ammunition on already two occasions within a short timeframe may be repeated.
As you state, you are a person who has been associated with firearms for a relatively lengthy period of time. As such, you should have been more aware of your responsibilities and requirements for which your licence was issued.
Accordingly, the serious lack of judgment you have displayed raises serious doubt about your ability to understand and fully comply with what are considered very privileged and onerous responsibilities and conditions attached to holding a Firearms Dealer licence. Further, I have formed the view that the public would hold the same view.
I believe that it is appropriate to consider and weigh up your interests with those of the wider community. I submit that public safety is the paramount consideration and that the system of firearms controls is intended to be very strict.
Finally, I have given substantial consideration to the views of Senior Constable Berry, Licensing Coordinator, Inverell Police, which have been supported by Inspector Harrington of Inverell Police. In his report of May 2003 Senior Constable Berry submits that he finds it difficult to accept that you consider these matters seriously due to the fact that this is the second time firearms have been stolen from your premises and despite this previous theft you failed to ensure the safekeeping of firearm some six months later. He states that he would have thought this previous theft would have made you extremely careful in this regard but it is obvious that it did not because you left a firearm on a table within an unlocked house. For these reasons Senior Constable Berry recommends the rejection of your request to have your licence reinstated and your application for a Firearms Dealer licence.
Therefore, in giving paramount consideration to the underlying principles and objects of the Act and notwithstanding your good character, given the seriousness of these incidents the public interest dictates that a decision maker err on the side of caution and, in effect, guarantee, by the revocation and/or refusal of a licence, that a similar incident will not be repeated: Hill -v- Commissioner of Police [2002] NSWADT 218 at para 28”.
35 Ms Paterson argued that the Tribunal should not treat these as two discrete matters as they have common relevant factors. The issues of primary significance are the fact that there were to break and enter incidents at Mr Pennington's premises. As a consequence of the first of those incidents there are thirteen firearms and ammunition at large in the community. As a consequence of the second incident there is now an air rifle at large in the community. Mr Pennington was charged with a breach of storage requirements of the Act and a finding of guilt was reached. The Local Court took many factors into consideration before making an order under section 10 of the Crimes (Sentencing Procedures) Act 1999. Those factors included the fact that it was the first time that Mr Pennington had appeared before the Local Court, his good character, and his plea of guilty. The fact remains however that the offence was found proven.
36 Ms Paterson stated that in relation to the first incident the offender must have either known or believed that there were firearms stored on Mr Pennington's house and looked for them. Less than six months later Mr Pennington was careless enough to leave his air rifle unsecured. The Commissioner concedes that Mr Pennington has taken action to secure his premises but this action was taken after the incidents. This is an example of a situation where “lightning struck twice”. It is possible that Mr Pennington was targeted by the offenders who broke into his premises because he was known in the community as somebody who had firearms and ammunition which is not safely stored. The Commissioner has concerns with respect to Mr Pennington holding a dealers licence because of the two incidents.
37 With respect to the submission that leaving an air rifle unsecured is on the lower end of the scale of seriousness, Ms Paterson submitted that someone not familiar with firearms would not make that differentiation if the air rifle was pointed at them. They might reasonably believe that the air rifle could cause them damage. In fact an air rifle can cause damage if fired. There can be no doubt that it could give rise to an apprehension or fear of harm.
38 Ms Paterson submitted that there is a risk to the community if the air rifle is passed on to someone who has no legitimate reason for having a firearm. This potential impact in the community is a serious consideration.
39 Mr Pennington's recreational use of firearms and the necessity for controlling vermin on his property must be weighed against the public interest in ensuring that the underlying principles and objects of the Act are met. In any event, his passion for using firearms is not relevant to the issue of whether his firearms licence should be revoked and the evidence suggests that Mr. Pennington has not given a great deal of consideration to alternative means of addressing the vermin control issue.
40 Ms Paterson submitted that Mr. Pennington has held firearms for a long time and he should have been aware of the conditions of his licence. Given the earlier incident and the loss of his firearms on that occasion he should also have known that his actions were potentially dangerous. She argued that given the breach of the licence conditions and the risk to the public it is not in the public interest that Mr. Pennington be permitted to hold a licence.
Findings
41 In this application, I have considered all of the evidence and the oral argument presented before the Tribunal. In particular I have had regard to the following issues:
- Mr. Pennington resides on a property situated to the west of Inverell and which comprises 170 acres upon which he runs sixty head of cattle;
Mr. Pennington is the proprietor of the business 'Gratyns Sporting Goods', Otho Street, Inverell;
as a result of an accident at the Inverell swimming pool in 1987 Mr. Pennington has been rendered a quadriplegic;
Mr. Pennington received a Category AB firearm licence in 1990 for primary production and recreational purposes;
on 15 October 2002 Mr. Pennington’s premises were the subject of a break-in during which thirteen firearms and ammunition were stolen;
on 17 March 2003 Mr. Pennington’s Category AB firearms licence was reissued for the genuine reason of `recreational hunting/vermin control' and 'primary production';
on 15 April 2003 Mr. Pennington lodged an application for a Firearms Dealer Licence;
on 29 Apri1 2003 Mr. Pennington’s premises was the subject of a break-in during which an air rifle was stolen;
on 29 May 2003 Mr. Pennington appeared in the Inverell Local Court and pleaded guilty to the offence of “Not keep firearm safely”. The presiding Magistrate found the offence proven but did not proceed to a conviction;
on 20 June 2003 Mr. Pennington’s category AB firearms licence was revoked and his application for a Firearms Dealer licence was refused;
Mr. Pennington states that he has always taken his firearms licence very seriously and has been careful in both the storage and use of firearms;
Mr. Pennington considers himself to be a responsible firearms holder;
Mr. Pennington does not have a criminal record and there was no conviction recorded against him for the firearms offence for which he was charged;
Mr. Pennington has taken steps to ensure that both his home and business premises are secure and gives his complete assurance that no further security incident will ever happen.
42 Having considered these matters I have formed the view that I do not agree with Mr Collin’s submission that the exercise of the discretion in each of the matters should be looked at independent of the other. In my view, the issue of public interest applies equally to Mr. Pennington’s ability to continue to hold an individual firearms licence as well as to his ability to operate a Firearms dealership. Nevertheless, these are separate decisions and therefore separate findings are necessary.
The Category AB licence
43 The principal issue that I have to decide is whether there is a risk to the safety of the public if Mr. Pennington’s licence is reinstated. Before a licence is issued, the Commissioner must conclude that there is virtually no risk to the public associated with the issue of the licence. In these matters the Tribunal stands in the shoes of the Commissioner and must assess that risk. The likelihood of risk must be assessed by reference to Mr. Pennington’s prior conduct.
44 Mr. Pennington has breached certain provisions of the Act in relation to the safe keeping of firearms. The seriousness of that breach must be assessed in relation to all the surrounding circumstances. Inescapably this requires consideration of the earlier incident in which 13 firearms were stolen. While no charges were brought against Mr. Pennington in relation to that incident, by his own admission he had failed to safely store his ammunition on that occasion. This of itself is an admission to a breach of the storage requirements of the Act. He was aware of his responsibilities with respect to the safekeeping of firearms but did not comply with his obligations.
45 I acknowledge that Mr. Pennington adopted an open and totally cooperative approach in dealing with the Police in relation to the two incidents however in my opinion no less would be expected from a firearm licensee in such circumstances. No particular weight can be given to this fact.
46 Given the seriousness of the theft on the first occasion, one might reasonably expect that Mr. Pennington would have been overly cautious in ensuring strict compliance with the legislative requirements for his storage of his firearms. I agree with the view expressed by the Commissioner’s delegate that Mr. Pennington was not diligent in his approach to ensuring that the legislative requirements imposed on him as a firearms licence holder were followed. He adopted a relatively casual approach to the safekeeping of his firearms.
47 I do not accept that any weight should be given to the submission that there is a public interest in Mr. Pennington's licence being granted to ensure appropriate competition within the township for firearms. There is simply no evidence to support this assertion.
48 Against this must be weighed Mr. Pennington’s undisputed good character; his history of firearms use that is incident free but which is overshadowed by these failures to comply with the legislative requirements regarding the storage of firearms. I note the evidence of Mr. Pennington’s interest in firearms since he was a young boy and the limitations on his capacity to participate in recreational pursuits as a result of his physical condition.
49 I found Mr. Pennington to be a credible witness. There are several areas in which the Commissioner’s delegate has formed opinions that are in direct contradiction of the evidence that Mr. Pennington has give. In the circumstances I accept Mr. Pennington’s version of events where they differ to that proffered on behalf of the Commissioner. For this reason I have formed a different opinion to that of the Commissioner with respect to the extent of Mr. Pennington’s culpability for the 15 October 2002 incident. On the evidence before me I do not with the Commissioner’s argument regarding the extent of the blame that should be attributed to Mr. Pennington with respect to the loss of the firearms in that incident. Notwithstanding that view, I note that the ammunition that was stolen was not secured as required by the Act and which is a condition imposed upon licensees. Mr. Pennington was still in breach of his obligation to store his ammunition safely and can be held answerable for that breach. I agree with the Commissioner’s argument that because Mr. Pennington’s residence is a remote rural property the need to secure his ammunition would be more so than usual.
50 One of the underlying principles of the Act is the improvement of public safety by imposing strict controls on the possession and use of firearms, and promoting the safe and responsible storage of firearms. Ensuring that only permitted firearms are in the possession of licensees and that those firearms are stored in a safe and secure manner decreases the likelihood that they may be used in committing serious offences against the community. It is clear from the legislation that Parliament has identified these matters as central and critical objectives of the legislation. Those principles and objectives have been reinforced in numerous decisions of this Tribunal. Mr. Pennington’s offence must be viewed with reference to them. Parliament did not leave the matter of the manner in which firearms are to be stored to the discretion of licence holders but instead elected to impose detailed and prescriptive requirements on all licences.
51 In this case it could not be said that Mr. Pennington has acted in complete disregard of the statutory requirements to safely store his firearms. He has clearly taken steps to obtain a licence and to have his firearms registered. He has also obtained appropriate storage for those firearms. Nevertheless, he made a conscious decision to not comply with what he knew to be his obligations. As a result, a firearm is at large in the community and there is now a very real danger posed by the theft of this firearm. I do not agree that the threat is significantly diminished because the theft relates to an air rifle and not a higher calibre firearm. In my view this firearm could equally threaten a person who is not knowledgeable about firearms. It is my view that any firearm, regardless of its type, is an obvious danger to the public when in the possession of a person minded to cause harm.
52 The fact remains that Mr. Pennington was found guilty of an offence relating to not keeping his firearm safely. While I accept Mr. Pennington’s evidence in regard to the security system set up for his premises, I agree that the evidence shows that his understanding of the importance of safe storage is questionable. Without this understanding I cannot be satisfied of his ability to act in accordance with the legislative provisions in the future. The effectiveness of firearm cabinets and sophisticated security systems is limited by the diligence of those responsible for their use. On the evidence I am satisfied that Mr. Pennington was not diligent in his approach to ensuring that the legislative requirements imposed on him as a firearms licence holder were followed. I am concerned that the same casual approach to the safekeeping of his firearms and ammunition may be carried into the future.
53 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. The operation of a firearms dealership is a very onerous position that comes with much responsibility. On the evidence presented I accept that Mr. Pennington was aware of the statutory obligations. Nevertheless, his actions suggest that he did not fully appreciate the importance of strict observance of those obligations. Having weighed the evidence, it is my view that that the gravity of Mr. Pennington’s offences outweigh the other relevant factors.
54 As stated in my findings in relation to the 15 October 2002 incident, I do not share the Commissioner’s view of Mr. Pennington responsibility for the theft of the firearms on that occasion. Given that view, I believe that Mr. Pennington could take steps to overcome his present lack of understanding of the statutory obligations. At this time however, it is my view that more would be required before the public could be comfortable with Mr. Pennington again holding a firearms licence. At the bare minimum this would require that Mr. Pennington completed, to the satisfaction of the Commissioner, firearms training and safety courses relevant to the licence that he seeks.
55 It follows in my view that the correct and preferable decision is to revoke Mr. Pennington’s firearms licence. Accordingly I affirm the Commissioner's decision.
The firearm dealers licence
56 The relevant provisions of the Act are found in section 11(7) which states that the Commissioner of Police may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest. In these matters the Tribunal stands in the shoes of the Commissioner and must assess that issue.
57 The question for the Tribunal is whether, based on all the evidence, it would be contrary to the public interest for Mr Pennington to be issued with the licence he seeks. Given my findings in relation to the revocation issue, it is not necessary that I re-examine this matter in any great detail. I simply state that in my view, Mr Pennington’s financial concerns with respect to his business are outweighed by the public interest in ensuring that the objects and principles of the Act are upheld. My view remains that more would be required before the public could be comfortable with Mr. Pennington holding a firearms licence of any kind, including a dealer’s licence. It is within Mr. Pennington’s capacity to obtain the necessary understanding and appreciation of the importance of strict observance of a licensee’s obligations. Until he is able to satisfy the Commissioner that he is able to meet that standard, I agree with the Commissioner that the licence should not be granted. Accordingly, it is appropriate in the circumstances that the Commissioner’s decision be affirmed.
Orders
- 1. The Commissioner’s decision to revoke Mr. Pennington’s Category AB firearms licence is affirmed.
2. The Commissioner's decision to refuse Mr. Pennington’s application for a Firearms Dealer licence is affirmed.
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