Phegan -v- Commissioner of Police, New South Wales Police Service

[2002] NSWADT 127

CITATION:	Phegan -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 127
DIVISION:	General Division
PARTIES:	APPLICANT John Michael Phegan RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	023062
HEARING DATES:	03/05/2002
SUBMISSIONS CLOSED:	05/03/2002
DATE OF DECISION:	07/22/2002
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	Firearms Act - firearms licence - revocation of licence or permit - Firearms licence - revocation of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Crimes (Sentencing Procedure) Act 1999 Firearms Act 1996
CASES CITED:	Yaghi v Commissioner of Police [2000] NSWADT 91 Pantle v Commissioner of Police [2001] NSWADT 207 Wilkinson v Commissioner of Police [2002] NSWADT 59 Fielden & Fielden v Commissioner of Police [2000]NSWADT 156 Cleofe v Commissioner of Police [2001] NSWADT 2 Cusumano v Commissioner of Police [2001] NSWADT 50 Kudrynski v Commissioner of Police [2001] NSWADT 101 Polyzogopoulos v Commissioner of Police [2001] NSWADT 166 Turner v Commissioner of Police [2001] NSWADT 169 Federici v Commissioner of Police 2001 NSWADT 183 Peardon v Commissioner of Police [2001] NSWADT 188 Cusumano -v- Commissioner of Police, [2001] NSWADTAP 28 Commissioner of Police v Yaghi [2001] NSWADTAP 35
REPRESENTATION:	APPLICANT In person RESPONDENT D Paterson, solicitor
ORDERS:	The decision to revoke the applicant’s firearms licence is affirmed.

Introduction

1 On 26 February 2002 the Commissioner of Police (the Commissioner) revoked Mr Phegan’s Category A and B firearms licences. These licences enabled Mr Phegan to engage in recreational shooting and vermin control on his property. The reason for the revocation was that Mr Phegan had been found guilty, with no conviction recorded, of two offences of not keeping a firearm safe. On 14 March 2002, Mr Phegan applied to the Tribunal for a review of that decision.

Jurisdiction

2 The Tribunal has jurisdiction to determine this matter pursuant to s 75(1)(c) of the Firearms Act 1996 (Firearms Act) and s 38 of the Administrative Decisions Tribunal Act 1997 (ADT Act).

Evidence

3 Mr Phegan gave evidence admitting that he had not stored five firearms and ammunition in accordance with the storage requirements of the Firearms Act on the day police came to his home. He said that he had been out hunting foxes, had returned home late, and had not put the firearms or the ammunition in the safe. The following day his 13 year old son went into Mr Phegan’s bedroom, loaded a firearm, took it outside and fired it into a fence post. No one was injured.

4 On hearing a firearm being discharged, a neighbour, whose house is approximately 100 meters away, complained to the police. Police officers visited Mr Phegan’s home. Mr Phegan showed the police his firearms and ammunition. He has a storage unit which complies with the legislation but he did not have his five firearms or his ammunition stored in that unit when police visited.

5 On 2 September 2001, the Local Court found Mr Phegan guilty of not keep firearm safely (not prohibited firearm/pistol) and failing to have approved storage. Pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 no conviction was recorded for these offences. The Magistrate ordered that Mr Phegan be discharged on condition that he enter into a good behaviour bond for 3 months.

6 Mr Phegan submitted two character references, one from his parish priest and the other from his state Member of Parliament. Both of these references attest to Mr Phegan’s good character and standing in the community. Mr Phegan also provided information about his long involvement with community and charitable activities including horse riding for people with disabilities, boy scouts, St Johns Family Care, Volunteer Bush Fire Fighter and Jindera Football Club.

Relevant legislation

7 The Firearms Act sets up a scheme for licensing people to possess and use firearms. Section 24(2) sets out some of the grounds on which the Commissioner may revoke a licence. The Commissioner relied on a single ground in this case, namely s 24(2)(b)(ii). That provision states that:

A licence may be revoked if the licensee contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention.
Submissions

8 Based on s 24(2)(b)(ii) the Commissioner submitted that he made the correct and preferable decision in revoking Mr Phegan’s firearms licence. If Mr Phegan had been convicted of the offences with which he was charged, he would be prohibited from holding a firearms licence for 10 years. (See s 11(5)(b) of the Firearms Act.)

9 Mr Phegan told the Tribunal that while he admitted that he had breached the legislation, in his view the indefinite revocation of his licence was too harsh a penalty in the circumstances.

Issue

10 The issue for the Tribunal to determine is whether the Commissioner made the correct and preferable decision in revoking Mr Phegan’s firearms licences on the ground that he has been found guilty of two offences relating to the storage of firearms. Under s 63 of the ADT, the Tribunal must take into account any relevant factual material and any applicable written or unwritten law. The Tribunal may then affirm, vary or set aside the Commissioner’s decision.

Decision and reasons

11 Mr Phegan breached certain provisions of the Firearms Act in relation to storage even though he was not convicted of those offences. Part 4 of the Firearms Act provides for the safekeeping of firearms. The general requirements are set out in s 39 which relevantly provides that 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.

12 The Firearms Act does not list the factors which a decision maker must take into account when deciding whether to revoke a person’s licence. In those circumstances the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act . The principles of the Firearms Act are set out in s 3:
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.
13 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. As is made clear from Part 4 of the Firearms Act Parliament did not leave the manner in which firearms are to be stored to the discretion of licence holders but imposed detailed requirements on all licensees.

14 The Tribunal has handed down eleven decisions reviewing decisions of the Commissioner to revoke or not issue a firearms licence when the licensee or applicant has breached storage requirements. The Tribunal affirmed the Commissioner’s decision in eight of those cases. The three cases in which the Tribunal set aside the Commissioner’s decision were: Yaghi v Commissioner of Police [2000] NSWADT 91, Pantle v Commissioner of Police [2001] NSWADT 207 and Wilkinson v Commissioner of Police [2002] NSWADT 59.

15 The only case which is similar to Mr Phegan’s situation is Yaghi v Commissioner of Police [2001] NSWADT 91. In that case police searched Mr Yaghi’s home and found a rifle in an upstairs living room and another rifle in a gun case under the bed. At the time of the search there were several young children at the property. No submissions were made by either party in relation to the discretionary powers found in s 24(2)(b)(ii). The Commissioner in this case relied exclusively on the power in that section. Consequently this case can be distinguished from Yaghi because that case was decided on the basis of whether Mr Yaghi was a fit and proper person to hold a licence and whether it was in the public interest for him to do so.

16 The incidents giving rise to the revocation of Mr Pantle’s licence had occurred five years previously and the Tribunal was satisfied that despite Mr Pantle’s conduct, he was now a fit and proper person to have Category A and B licence. (Pantle v Commissioner of Police [2001] NSWADT 207.) In Wilkinson v Commissioner of Police [2002] NSWADT 59, the Tribunal decided that Mr Wilkinson's failure to store firearms safely, while a serious matter, was committed when he was profoundly depressed. The medical evidence confirmed that he was no longer suffering from depression.

17 Cases in which the Tribunal affirmed the Commissioner’s decision include:

· Fielden & Fielden v Commissioner of Police [2000]NSWADT 156, where the police found four guns wrapped in a blanket under Mrs Fielden’s bed;

· Cleofe v Commissioner of Police [2001] NSWADT 2 where a security guard left a firearm in an unlocked drawer;

· Cusumano v Commissioner of Police [2001] NSWADT 50 where police found several firearms stored in the top of a bedroom wardrobe;

· Kudrynski v Commissioner of Police [2001] NSWADT 101 where Mr Kudrynski had a shotgun and ammunition stored in a sleeping bag in a car en route to Melbourne;

· Polyzogopoulos v Commissioner of Police [2001] NSWADT 166 where the police found a firearm in a leather cover in a wardrobe;

· Turner v Commissioner of Police [2001] NSWADT 169 where firearms were found inside a built-in wardrobe;

· Federici v Commissioner of Police 2001 NSWADT 183 where the locked steel box containing three rifles and a shotgun was not attached to any permanent fixture; and

· Peardon v Commissioner of Police [2001] NSWADT 188 where police found two rifles in a wardrobe and another rifle and shot gun disassembled and wrapped in bed sheets.

18 In two of the eleven matters referred to above, a party has appealed to the Appeal Panel of this Tribunal. In Cusumano -v- Commissioner of Police, [2001] NSWADTAP 28 the Appeal Panel decided that the appeal was so devoid of merit that it would be futile to extend time in which to lodge the appeal. The appeal was dismissed. In Commissioner of Police v Yaghi [2001] NSWADTAP 35 the Appeal Panel affirmed the Tribunal’s decision. However given that the appeal did not relate to s 24(2)(b)(ii), the reasoning on the appeal is not relevant to the circumstance of this case.

19 These decisions make it clear that for the Tribunal to set aside a revocation decision based on failure to store firearms safely an applicant must show that there are persuasive and relevant considerations which take their matter outside the ordinary case.

20 Mr Phegan failed to store firearms and ammunition safely in a situation where one of his children accessed, loaded and fired one of those firearms. 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. There are no extenuating circumstances in this case which would justify the Tribunal setting aside the Commissioner’s decision to revoke Mr Phegan’s licence.

21 While Mr Phegan admitted that he did the wrong thing, he submitted that an indefinite revocation period is too harsh a response in the circumstances. The Appeal Panel dealt with a similar submission in Cusumano -v- Commissioner of Police, [2001] NSWADTAP 28 at [9] and [10]. The Appeal Panel stated that:

. . . during the course of argument the Appeal Panel sought to clarify with Mr Cusumano his understanding of the position he finds himself in, now that his firearms licences are revoked. It is true that there is a lack of clarity as to when he might be able to regain a licence but he would not, as he seems to think, be any better off if he had been actually convicted at the Local Court. If he had been convicted at the Local Court he would have been barred completely from having a licence for the next ten years whereas the way the matter stands at the moment it is open to the Commissioner to restore the licence within the ten year period if the Commissioner is so minded.

As to what factors might influence the Commissioner in that regard our view is that Mr Cusumano will have to make his own inquiries of the Firearms Registry.

22 The Tribunal has no power to impose a time limit on the revocation of Mr Phegan’s licence. For the reasons set out above, the Commissioner’s decision to revoke the licences is affirmed.