Petas v Commissioner of Police, NSW Police Force
[2013] NSWADT 137
•13 June 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Petas v Commissioner of Police, NSW Police [2013] NSWADT 137 Decision date: 13 June 2013 Jurisdiction: General Division Before: S Frost, Judicial Member Decision: Decision set aside; matter, remitted to the Respondent for reconsideration, in accordance with a direction that the Applicant be granted a category A and category B firearms licence within 28 days of publication of these reasons, either:
(a)unconditionally; or
(b)subject, if the Respondent considers it appropriate, to a condition that the Applicant not act as a director or executive of an gun club; or
(c)subject to any other condition that the Respondent considers appropriate, and consistent with the Tribunal's finding that issuing a category A and category B licence to the Applicant would not be contrary to the public interest.
Catchwords: Firearms licensing - public interest Legislation Cited: Firearms Act 1996
Firearms Regulation 2006Cases Cited: Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 Category: Principal judgment Parties: George Petas (Applicant);
Commissioner of Police, NSW Police (Respondent)Representation: Counsel
Mr P Kintominas (Applicant)
Ms J Lucy (Respondent)
Speirs & Associates (Applicant)
Crown Solicitor's Office (Respondent)
File Number(s): 123262
reasons for decision
GENERAL DIVISION (S FROST, JUDICIAL MEMBER): On 22 August 2010 a young woman by the name of Shamin Fernando attended the Sydney Pistol Club to participate in the Club's "match of the day" shoot. At the time Ms Fernando was a probationary member of the Club. She did not hold a firearms licence but she was allowed to take part in the shoot because of an exemption in s 6B of the Firearms Act 1996 (the Act).
At the end of the shoot Ms Fernando left the Club premises. When she left she took with her the pistol she had been firing at the range, together with a number of unspent rounds of ammunition. By mid-afternoon she had used the pistol to shoot and kill her father.
George Petas, the applicant in these proceedings, was the duty officer at the Club throughout the time that Ms Fernando was on the range. He had held firearms licences, both personal and as a firearms dealer, since 1991. His licences were suspended, and later revoked, as a result of his involvement, as the Club's duty officer, in the events of 22 August 2010.
Mr Petas subsequently made a further application for a category AB firearms licence. That application was refused. He sought internal review, which was also refused. He has now applied to the Tribunal for review of the refusal decision.
I have decided to set aside the decision of the Respondent. My reasons follow.
The issue and the legislation
The issue for determination is whether, in terms of s 11(7) of the Act, the grant of a licence to Mr Petas "would be contrary to the public interest". If it would, then the Commissioner (and the Tribunal on review) has a discretion to refuse the grant of the licence.
The issue must be considered in the context of the purpose and object of the Act. In that regard s 3 of the Act provides:
3 Principles and objects of Act
(1) The underlying principles of this Act are:
(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and
(b) to improve public safety:
(i) by imposing strict controls on the possession and use of firearms, and
(ii) by promoting the safe and responsible storage and use of firearms, and
(c) to facilitate a national approach to the control of firearms.
(2) The objects of this Act are as follows:
(a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,
(b) to establish an integrated licensing and registration scheme for all firearms,
(c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,
(d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms,
(e) to ensure that firearms are stored and conveyed in a safe and secure manner,
(f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.
The categories of licence that Mr Petas has applied for are categories A and B. They are described in s 8(1) of the Act, as follows:
8 Licence categories and authority conferred by licence
(cf 1989 Act s 21, APMC 1, 3, 4)
(1) The categories of licences, the firearms to which they apply, and the authority they confer, are as follows:
Category A licence
Firearms to which the licence applies:
· air rifles
· rimfire rifles (other than self-loading),
· shotguns (other than pump action or self-loading)
· shotgun/rimfire rifle combinations.
All prohibited firearms are excluded from this licence category.
Authority conferred by the licence:
The licensee is authorised to possess or use a registered firearm of the kind to which the licence applies, but only for the purpose established by the licensee as being the genuine reason for possessing or using the firearm.
Category B licence
Firearms to which the licence applies:
· muzzle-loading firearms (other than pistols)
· centre-fire rifles (other than self-loading)
· shotgun/centre-fire rifle combinations.
All prohibited firearms are excluded from this licence category.
Authority conferred by the licence:
The licensee is authorised to possess or use a registered firearm of the kind to which the licence applies, but only for the purpose established by the licensee as being the genuine reason for possessing or using the firearm.
Mr Petas says that the reason he wants his category A and B licences restored is so that he can attend a gun club and participate in competitions. He also says in his affidavit sworn on 19 February 2013:
...
[72] If given the opportunity to have my gun licences restored to me I will undertake not to seek appointment to any position of authority with my registered gun club. I will never again place myself in a situation whereby I will have to be responsible for unlicensed shooters.
[73] I have always appreciated and believed that having a firearm licence was a privilege and as a past holder of a gun licence I have always taken this privilege seriously and I have always maintained an absolute commitment to safety in situations where guns are involved.
...
[76] I say that I am a fit and proper person to have a firearm licence.
[77] I have always acted responsibly. I have always followed my club rules and directions. I have never acted carelessly when it has come to using and storing firearms I have always acted honestly.
[78] I have never intended to use firearms for any work related employment or for recreational shooting. I only intend to use my firearms for use within a Pistol Club environment. I enjoy competitive shooting and it has been my passion now for 20 years.
...
The events of 22 August 2010
The detailed events of 22 August 2010, as set out in the Respondent's written submissions, do not appear to be disputed by Mr Petas (footnotes omitted; Mr Petas is referred to as the "applicant"):
...
[7] On 22 August 2010 Fernando attended the shooting range to participate in the "match of the day" shoot scheduled to be held that day. Patrick Slavik ("Slavik") was also present at the club premises and had a supervisory role on the range during the day. Slavik, in his capacity as the club "gun keeper", was responsible for storage of the club's firearms at his residential address and for transporting the firearms to the range. Slavik used two metal boxes for these purposes - one contained .22 calibre pistols and the other contained air pistols. On the day in question the club had 12 firearms available for use by members - 8 .22 calibre pistols and 4 air pistols. On 22 August 2010 Slavik also participated in shooting personally. The applicant, as Duty Officer was responsible, in part at least, for the issue and return of firearms at the office at the club premises.
[8] At around 9am Fernando attended the office and requested a .22 calibre pistol. The applicant issued the pistol, serial number 19-66998 ("Pistol"), which was owned by and registered to the Club. The applicant made an entry in the register maintained in the office recording that the Pistol had been provided to Fernando. The applicant also sold Fernando two boxes of .22 ammunition, containing a total of 100 rounds. A shoot requires only 70 rounds.
[9] Fernando took the Pistol, unsupervised, to the firing line where she approached Slavik to request assistance in loading and preparing the Pistol for the shoot. Slavik accompanied Fernando to range 2 where he gave her instructions in relation to the Pistol. Fernando and Slavik then returned to range 1 where each participated in the shoot. During the shoot Slavik, in his capacity as Range Officer, was responsible for supervising the 10 people who were on the firing line during the shoot.
[10] At around 11.30 Slavik finished his shoot and returned his firearm to the office. Fernando then entered the office and asked for an air pistol (also belonging to the Club). The applicant gave Fernando the air pistol and entered the information in the register at the office. At the request of the applicant, Slavik returned to the firing line to check on Fernando, where he provided instructions to her. Slavik then took possession of the air pistol and returned it to the office. An entry was made on the register showing the return of the air pistol. Slavik then obtained his own personal air pistol and returned to the range where he gave instruction to Fernando on its use.
[11] At around noon Slavik left the office and advised the applicant that he was going home for lunch. Fernando remained unsupervised on the range. At that time she was in possession of both the Pistol and Slavik's air pistol. Some time thereafter Fernando told the applicant that she was not feeling well and was going home.
[12] Slavik returned to the range at around 1.15pm, at which time he noticed his own air pistol unsecured on the floor. He returned to the office with the air pistol.
[13] Slavik was asked to check the register by the Club Captain, Philip Jefferies, to confirm that two other pistols which had been issued for a safety course had been checked in. In checking the register, Slavik noticed that there was no entry relating to the Pistol. Slavik endorsed the register to certify the return of the Pistol. He did not undertake any physical reconciliation to check whether this was accurate. In fact the Pistol had not been returned. At around 2pm, following the conclusion of activities at the club for the day, Slavik secured the pistol boxes and returned them to his home. In the course of moving the pistols from the boxes to his home safe, Slavik noticed that the Pistol was missing.
[14] Police were notified of the theft of the Pistol shortly after 3pm by the Club Captain. At around the same time, Fernando used the Pistol at her home in Glebe to shoot and kill her father.
...
The Respondent's written submissions go on to detail the subsequent criminal proceedings against Mr Petas and Mr Slavik:
[15] Slavik was subsequently charged with an offence, pursuant to cl. 110(6) of the Firearms Regulation, of failing to ensure that the person who is possessing or using a firearm at the shooting range does so only while under direction supervision as required by s. 6B(1) of the Act. Slavik was also charged, pursuant to s. 39(1)(b) of the Firearms Act, with failing to prevent the theft or loss of the firearm. Slavik was convicted of both offences.
[16] The applicant was charged with an offence pursuant to s. 65(1) of the Firearms Act, namely selling ammunition without seeing the buyer's licence or permit. He was found guilty on 20 May 2011, but the Local Court made an order pursuant to s. 10(1) of the Crimes (Sentencing Procedure) Act 1999 dismissing the charge without recording a conviction. The applicant appealed his conviction to the District Court. On 22 September 2011, Judge Tupman dismissed the appeal and confirmed the orders of Magistrate Williams.
The Applicant's evidence
Mr Petas swore an affidavit for these proceedings and also gave oral evidence. His counsel described Mr Petas as not a very complicated man, but a transparently honest man. I agree with that characterisation.
Mr Petas' affidavit paints a picture of serious shortcomings in the processes and procedures in place at the Sydney Pistol Club.
On the day in question there were at least three office-bearers of the Club in attendance. Mr Petas was one of them, serving as the "duty officer". Patrick Slavik was another, who took on the role of "range officer". Also in attendance was the club captain, Philip Jefferies. The three men's duties appear to have been only very loosely defined and the boundaries between them difficult to identify with precision.
Mr Petas seems to accept that, as the duty officer, he was responsible, at least, for allocating one or more Club members as the range officer or range officers for unlicensed shooters (paragraph 20 of his affidavit). He allocated Patrick Slavik as Shamin Fernando's range officer, and Mr Slavik agreed to perform that role (paragraphs 54-55).
A further important role for someone in the club to perform in relation to unlicensed shooters is to obtain a completed "P650" form from them. The Respondent's written submissions, at paragraph 27, explain the significance of a P650 form:
Clause 110 of the Firearms Regulation imposes a number of specific conditions and requirements relating to the exemption under s. 6B of the Firearms Act. It is a condition of a shooting range approval, issued under cl. 87 of the Firearms Regulation, that a club or range official must ensure that before an unlicensed person uses any firearm at the range the person completes and signs a form containing specified questions, including whether the person is suffering from any mental illness or other disorder that may prevent the person from using a firearm safely: cl. 110(2). The mandatory questions are set out in a form known as a "P650 form".
What is now known is that Ms Fernando did not complete a P650 form on the day of the shoot. What is not clear is why she did not do so, although it is highly likely that the haphazard allocation of duties and responsibilities at the Club played a role. Mr Petas says that he asked Mr Jefferies, the club captain, if Ms Fernando had completed a form, and he said she had. It was then that Mr Petas handed over the ammunition to her.
Although Mr Jefferies said at Mr Petas' trial that he, Mr Jefferies, "... did not fill the P650 form out with her ...", I am satisfied that Mr Petas' understanding at the time, which he obtained from Mr Jefferies, was that Ms Fernando had completed a P650 form on the morning of the shoot.
It became clear to me, on observing Mr Petas give oral evidence in these proceedings, that his understanding of his responsibilities as a director and office-bearer of the Club was hopelessly inadequate. In addition to that, on the day of the shoot he trusted his colleagues to perform the functions that he thought they were responsible for, but without ever checking with them to see whether their understanding of their duties was the same as his. Having said that, I am reasonably satisfied that there was nothing special or unusual about the way things occurred on that particular day. The processes at the Club were woeful, the safeguards in place well short of best practice.
The Respondent's submissions
The Respondent submits that it is not in the public interest for Mr Petas to be issued with a firearms licence, because:
(a) his past conduct suggests that he does not have an adequate understanding of the firearms legislation;
(b) his failure to accept responsibility for his role in the sale of the ammunition that led to the death of Mr Fernando would not allow the Tribunal to be satisfied that he will comply with its obligations in the future.
As far as "past conduct" is concerned, the Respondent focuses on three particular matters.
Past conduct - sale of ammunition
The first concerns the sale of ammunition to Ms Fernando at the Pistol Club on 22 August 2010. As already noted, Mr Petas was charged under s 65 of the Act with selling ammunition without seeing the buyer's (Ms Fernando's) licence or permit. In the Local Court the Magistrate ultimately found that the transaction undertaken was indeed a "sale". Mr Petas was found guilty of the offence charged but no conviction was recorded. On appeal, Judge Tupman in the District Court was satisfied that the offence was properly proved and dismissed Mr Petas's appeal. The transcript then records the following exchange:
HER HONOUR: I take it that no one wants to be heard in relation to penalty.
McKAY: The Crown hasn't made any appeal against the sentence imposed.
Her honour: Nor should it.
McKAY: Well when I say that, that there was a no conviction recorded.
Her honour: I don't know anything other than what Mr Miller told me and that is that there was no conviction recorded which is absolutely the appropriate outcome in the circumstances.
It is clear from the Respondent's submissions that the Respondent is concerned not so much about the commission of the offence as about the conduct that led to it (see paragraph 25 of the written submissions):
The circumstances were that the applicant sold 100 rounds of ammunition to a person who did not hold a licence, when at most she could only have used 70 rounds for a shoot. The remaining 30 rounds were not required to be returned.
Past conduct - failure to ensure that a P650 form had been completed
The second "past conduct" matter that the Respondent focuses on is the failure to ensure that a P650 form had been completed by Ms Fernando on the morning of the shoot.
Plainly, Mr Petas did not ensure that a P650 form had been completed. However, as I have found, Mr Petas' understanding, gleaned from Mr Jefferies, was that a form had been completed. Mr Petas should have checked, and he now acknowledges that. As he said in the witness box, "I should have taken another step." He trusted what he understood the club captain was telling him. He should not have done so.
The evidence before the Tribunal includes two P650 forms that Ms Fernando had previously completed - one on 27 June 2010 and one on 4 July 2010. The form asks, in accordance with clause 110 of the Firearms Regulation, "Are you suffering from any mental illness or other disorder that may prevent you from using a firearm safely?" On both of the forms Ms Fernando answered "No".
There can be little doubt that if Ms Fernando had completed a P650 form on 22 August 2010 she would have answered "No" to the question about mental illness. The events of 22 August 2010 cannot be attributed to Ms Fernando's failure to complete the P650 form. Nevertheless, the failure to ensure that the form had been completed amounts to a serious breach, by the Club, of clause 110 of the Regulation, for which every "club or range official" is responsible. It can be assumed that Mr Petas answers that description, and so, most likely, do both Mr Jefferies and Mr Slavik.
The Respondent submits:
...
[28] Fernando had used the shooting range on two occasions prior to 22 August 2010. Fernando joined the Club by application number 137, issued by the applicant on 20 June 2010, and signed by Fernando on 4 July 2010. In accordance with the procedure under cl. 110 of the Firearms Regulation, Fernando completed P650 forms on 27 June 2010 and 4 July 2010. However, on 22 August 2010, Fernando did not complete a P650 form.
[29] The respondent submits that, before issuing the applicant with the Pistol, and later an air pistol, the applicant had a responsibility to ensure that the P650 was completed. He did not. In doing so, he failed to comply with cl. 110 of the Regulations. This failure to ensure proper compliance when in a position of responsibility in relation to the issuing of firearms to unlicensed users indicates a lack of awareness or attention to his responsibilities when he was the holder of a firearms licence.
...
Past conduct - failure to ensure that the pistol was returned
The third "past conduct" matter that the Respondent focuses on is Mr Petas' failure to ensure that Ms Fernando returned the pistol and that its return was properly recorded in the register. The Respondent submits (footnotes omitted):
...
[30] It is plain from the applicant's record of interview, that the arrangements in relation to monitoring guns which had been signed out to unlicensed people at the Club were vague. At one point in his record of interview, the applicant says that although he had signed the gun out, it could be returned to any committee member. He acknowledge[d] that there were no routine checks done to see whether guns had or had not been returned. It would depend upon whether a director had returned to see the register again. Later, the applicant emphasised that it was the Armourer (Slavik) who was responsible for ensuring that all firearms had been returned.
[31] In all of this, the applicant was a part of the Club. He was also the Vice President, and a person with a significant responsibility for signing out the Pistol that day. He must share responsibility for ensuring that the Pistol was returned.
...
Failure to accept responsibility
The Respondent submits that acknowledgment of responsibility is an important factor in deciding whether a person should be granted a licence. The Respondent notes that, although Mr Petas acknowledges that the offence of selling ammunition was proved:
...
[33] ... he says that he is innocent, in that he was acting at all times as the agent of the Club, and complying with the rules of the Club. He says that he received no benefit from the sale of the ammunition and the provision of the gun to Fernando.
[34] Those submissions miss the point, and confirm that the applicant has tried to shift the blame for the failure to observe the firearm licensing regime to the Club. It ignores the fact that at the time of the offence, the applicant was the Vice President of the Club. Furthermore, he was one of the people given responsibility for providing unlicensed persons with a firearm, pursuant to s. 6B of the Firearms Act. He had an independent obligation to ensure compliance with the obligations of s. 6B. He was required not to sell ammunition in breach of s. 65, but did so.
[35] Nowhere does the applicant express remorse for these failures, or suggest that he has made any efforts to improve his understanding of firearms regulations and responsibilities. There is nothing to suggest that the applicant understands his personal responsibilities as a firearms licensee, nor that such a licence is a privilege.
...
Consideration
Mr Petas plainly lacks the competence to perform the role of a director or office-bearer of a gun club.
He did not understand his duties or the duties of the Club. He did not see any shortcomings in the Club's procedures, or if he did, he did nothing about it. Perhaps he was simply complacent. Perhaps he thought that if things had run smoothly for years, there were not likely to be any serious safety issues. Or perhaps he did not turn his mind to the question.
But there were serious safety issues. The selling of ammunition to unlicensed shooters may have been the least of them. Of significant concern was the poor delineation of responsibilities for the critical aspects of the Club's activities: the completion of regulatory forms; the signing in and out of firearms; the supervision of shooters in training; the acquitting of unused ammunition. Disaster looms when everyone thinks these are someone else's responsibility.
The question now is whether it would be contrary to the public interest to issue a category A and a category B licence to Mr Petas. He has made it plain that he never again wants to be a director of a gun club or to put himself in a position where he is responsible for unlicensed shooters. He just wants to take up competitive shooting again.
The Tribunal discussed the public interest criterion in s 11(7) of the Act in Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276:
69 The Applicant's individual interest in retaining his licence must be subordinate to the public interest in ensuring public safety. This position is supported by the decision of Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 where it was stated at 681:
"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 Commission's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation."
70 In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at paragraph [25], the Appeal Panel said that the 'public interest' "is an inherently broad concept giving [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual".
71 There is discretion with respect to whether to revoke the licence in this case. The Tribunal has previously found that any discretion must be exercised to promote the objects of the firearm legislation: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23] and the discretion is to be exercised in clear preference to the public interest than an individual's private interests. That view has been followed in numerous decisions and I agree that it is the correct approach to be taken in this matter.
72 In Wilkinson v Commissioner of Police, New South Wales Police Service [2002] NSWADT 59 Deputy President Hennessy stated at paragraph [25]:
25 As the Firearms Act does not list factors which a decision maker must take into account when exercising a discretion about revocation, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act. ...
73 A firearm licence is a privilege and not a right. 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: Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75 at paragraph [25].
74 The underlying principles of the Act stated in section 3(1) 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. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, at paragraph 28, Deputy President Hennessy said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk".
One aspect of the circumstances of 22 August 2010 is that Mr Petas' performance as the Club's duty officer contributed to - but was not the only cause of - the tragic events that unfolded. It should not be forgotten that another significant contributor was the fact that Ms Fernando was a thief who had previously shown herself to be a liar. It would be easy to demonise Mr Petas, and to punish him further for breaching s 65 of the Act by selling ammunition to an unlicensed person. But the licensing regime is not about punishment. It is about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with a need to reduce any risks to a minimum.
Issuing to Mr Petas a category A and category B licence does not, in my opinion, pose a risk to the safety of the public. He has a long history of dealing with firearms safely. He knows how to do that. Where he fell short was in supervising the behaviour of others. He does not have the skills to do that.
Mr Petas indicated to the Tribunal that he would accept, as a condition on his licence, that he would not act as a director or executive of any gun club. While that seems a sensible safeguard, in my view the Commissioner is better equipped than the Tribunal to determine whether a condition along those lines is appropriate and enforceable.
The Tribunal decides that the correct and preferable decision is to set aside the decision under review, and to remit the matter to the Commissioner for reconsideration, in accordance with a direction that Mr Petas be granted a category A and category B firearms licence either:
(a) unconditionally; or
(b) subject, if the Commissioner considers it appropriate, to a condition that Mr Petas not act as a director or executive of an gun club; or
(c) subject to any other condition that the Commissioner considers appropriate, and consistent with the Tribunal's finding that issuing a category A and category B licence to Mr Petas would not be contrary to the public interest.
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Decision last updated: 13 June 2013
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