Philp v Commissioner of Police, NSW Police Force
[2014] NSWCATAD 25
•12 March 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Philp v Commissioner of Police, NSW Police Force [2014] NSWCATAD 25 Hearing dates: 8 July 2013 Decision date: 12 March 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery, Senior Member Decision: The decision is affirmed
Catchwords: Firearms Act - firearms licence - revocation of licence - contrary to the public interest Legislation Cited: Administrative Decisions Tribunal Act 1997
Civil and Administrative Tribunal Act 2013
Firearms Act 1996
Firearms Regulation 2006Cases Cited: Brosowski v Commissioner of Police [2003] NSWADT 182
DP v Commissioner of Police [2007] NSWADT 277
Hill v Commissioner of Police [2002] NSWADT 218
Lynch v Commissioner of Police, New South Wales Police Service (GD) [2006] NSWADTAP 43
Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276
Sydney Pistol Club v Commissioner of Police NSW Police Force [2012] NSWADT 121
Tolley v Commissioner of Police, NSW Police [2006] NSWADT 149
Ward v Commissioner of Police v New South Wales Police Service [2000] NSWADT28Category: Principal judgment Parties: Lynette Philp (Applicant)
Commissioner of Police, NSW Police Force (Respondent)Representation: Counsel
G Sundstrom (Applicant)
Harris Wheeler Lawyers (Applicant)
Bartier Perry (Respondent)
File Number(s): 133116
reasons for decision
Background
This matter was commenced in the General Division of the Administrative Decisions Tribunal ("the ADT"). On 1 January 2014, the ADT was abolished and its functions were taken over by the Civil and Administrative Tribunal of New South Wales ('NCAT'). The present decision is therefore a decision of NCAT. But because the proceedings to which it relates are 'part heard proceedings' as defined in clause 6(1) of Schedule 1 of the Civil and Administrative Tribunal Act 2013, they are to be determined as if that Act had not been enacted (see clause 7(3)(b) of this Schedule).
The Applicant has held a Category ABH firearms licence under the Firearms Act 1996 ("the Act"). She held the licence for the genuine reasons of Target Shooting and Recreational Hunting/Vermin Control. She also held licences under previous legislation and a Dealer's Authority. She held a club armourer's licence for approximately three years and was club armourer of the Newtec Pistol Club.
The Applicant's firearms licence was revoked in December 2012 and the revocation was affirmed on internal review. The internal review decision upheld the original decision on the grounds that:
a) there is reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because of the Applicant's way of living and domestic circumstances;
b) the Applicant contravened provisions in the Act; and
c) it is not in the public interest that the Applicant be granted the privilege of a firearm licence.
The Applicant has applied to the Tribunal for external review of that revocation.
Background
The Applicant's husband, Mr Warren Howard, held a firearms dealer licence. Mr Howard operated a firearm dealership for ACME Sports Pty Ltd ("ACME Sports"). The Applicant was a Director Employee of ACME Sports and held an Authority issued by the Firearms Registry to enable her to assist Mr Howard in the conduct of his business. Acme Sports operated from premises that the Applicant shared with Mr Howard ("the Premises"). In that regard firearms were stored at the Premises.
The Applicant's involvement in the Acme Sports business was predominantly to complete the online transactions with the Firearms Registry. Mr Howard was responsible for the purchase and disposal of firearms and ammunition within the business.
In September 2001, Mr Howard sold a Smith & Wesson Semi-automatic Pistol ("the Smith & Wesson") to Kevin Potts Security Services Pty Ltd. In August 2003, Kevin Potts Security Services Pty Ltd sold the Smith & Wesson to Australian Consolidated Protection Services Pty Ltd ("ACP").
In October 2009, in her capacity as club armourer for the Newtec Pistol Club, the Applicant facilitated the transfer of ownership of the Smith & Wesson from ACP to Mr Kevin Potts. The Applicant witnessed the transfer on 14 October 2009. Subsequently, the Applicant altered paperwork to make it appear that the transaction occurred and was witnessed on 22 December 2009. The Respondent contends that the transaction did not occur on that day because the firearm was in police custody from 2 November 2009.
It is common ground that at relevant times the Smith & Wesson was a prohibited pistol because it was a self-loading pistol with a barrel length of less than 120mm: Section 4C(1)(b) of the Act.
ACP subsequently reported the Smith & Wesson as stolen and the transfer of ownership from ACP to Mr Potts was the subject of investigation by Police. That investigation resulted in the revocation of Mr Potts' firearms licence.
In August 2012 Police discovered a number of firearm offences while executing a search warrant at the Premises. The breaches resulted in Mr Howard being charged with 56 offences. He was charged and found guilty of:
- 1 count of possessing a prohibited firearm (and placed on a bond pursuant to section 9 of the Crimes (Sentencing Procedures) Act 1999);
- 10 counts of possessing an unregistered firearm (and placed on a section 9 bond);
- 8 counts of failing to make quarterly returns (but did not proceed to a conviction under section 10 of the Crimes (Sentencing Procedures) Act 1999); and
- 1 count of possessing an unregistered firearm (and placed on a section 9 bond).
As a result of the convictions, Mr Howard is not eligible to hold a firearms licence until 2022.
The Applicant says she was not aware of the existence of the unregistered firearms in respect of which Mr Howard was charged.
Police also allege that the Firearms were not stored in compliance with the Act. Police also allege that:
1.whilst acting as a club armour, the Applicant failed to ensure quarterly returns were lodged in respect of ACME Sports;
2.on 15 August 2012 imitation firearms were discovered at the Premises, that the Applicant did not have a permit to possess them and they were not stored in compliance with the Act; and
3.on 15 November 2012, the Applicant was involved in an attempt to conceal a firearm and silencer from police during the execution of the search warrant.
The Applicable Law
The principles and objects of the Act are set out in section 3 which 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 supply 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.
Section 11(4)(a) of the Act, prescribes that a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant's way of living or domestic circumstances.
Section 24(2)(a) of the Act, prescribes that a firearms licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind.
Section 24(2)(b)(ii) of the Act, prescribes that a licence may be revoked if the licensee contravenes any provision of the Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention.
Section 24(2)(d) of the Act, prescribes that a licence may be revoked for any other reason prescribed by the Regulations.
Clause 19 of the Firearms Regulation 2006 ("the Regulations"), prescribes that the Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.
A "prohibited pistol" is defined in section 4C of the Act as
4C Meaning of "prohibited pistol"
(1) In this Act,
"prohibited pistol" means any of the following kinds of pistol:
(a) a pistol with a calibre of more than .38 inch,
(b) a self-loading pistol with a barrel length of less than 120 mm,
(c) a revolver with a barrel length of less than 100 mm,
but does not include any such kind of pistol that is a black powder pistol.
Note: A prohibited pistol is not a prohibited firearm. Prohibited firearms are listed in Schedule 1 (see definition of
"prohibited firearm" in section 4 (1)).
(2) For the purposes of this Act, any pistol that would be a prohibited pistol:
(a) if it did not have something missing from it, or a defect or obstruction in it, or
(b) if it were not for the fact that something has been done to it (being something that, in the opinion of the Commissioner, is not in accordance with the recognised specifications for that pistol),
is taken to be a prohibited pistol.
Section 4D of the Act concerns imitation firearms. That section provides:
Special provisions relating to imitation firearms
4D Special provisions relating to imitation firearms
(1) This Act applies to an imitation firearm in the same way as it applies to a firearm, subject to the following:
(a) the Commissioner may not issue a licence authorising the possession or use of an imitation firearm (except to a firearms dealer) but may issue a permit authorising the possession or use of an imitation firearm,
(b) an imitation firearm is not required to be registered.
(2) For the purposes of the application (as provided by this section) of this Act to imitation firearms:
(a) an imitation firearm that is an imitation of a pistol is taken to be a pistol, and
(b) an imitation firearm that is an imitation of a prohibited firearm is taken to be a prohibited firearm.
(3) In this section,
"imitation firearm" means an object that, regardless of its colour, weight or composition or the presence or absence of any moveable parts, substantially duplicates in appearance a firearm but that is not a firearm.
(4) However, an imitation firearm does not include any such object that is produced and identified as a children's toy.
Section 7 of the Act addresses the unauthorised possession or use of pistols or prohibited firearms. It provides:
7 Offence of unauthorised possession or use of pistols or prohibited firearms
(1) A person must not possess or use a pistol or prohibited firearm unless the person is authorised to do so by a licence or permit.
Maximum penalty: imprisonment for 14 years.
(2) Without limiting the operation of subsection (1), a person who is the holder of a licence is guilty of an offence under this section if the person:
(a) uses a pistol or prohibited firearm for any purpose otherwise than in connection with the purpose established by the person as being the genuine reason for possessing or using the pistol or prohibited firearm, or
(b) contravenes any condition of the licence.
(3) If, on the trial for an offence under this section, the jury is not satisfied that the accused is guilty of the offence but is satisfied on the evidence that the person is guilty of an offence under section 7A, it may find the person not guilty of the offence but guilty of an offence under section 7A, and the accused is liable to punishment accordingly.
Section 7A of the Act provides:
7A Offence of unauthorised possession or use of firearms generally
(1) A person must not possess or use a firearm unless the person is authorised to do so by a licence or permit.
Maximum penalty: imprisonment for 5 years.
(2) Without limiting the operation of subsection (1), a person who is the holder of a licence is guilty of an offence under this section if the person:
(a) uses a firearm for any purpose otherwise than in connection with the purpose established by the person as being the genuine reason for possessing or using the firearm, or
(b) contravenes any condition of the licence.
Section 45 of the Act provides for firearm dealer and club armourer record keeping obligations:
45 Recording of transactions
(1) A licensed firearms dealer must ensure that:
(a) all transactions and dealings concerning firearms or firearm parts to which the firearms dealer's licence applies are recorded in accordance with this section, and
(b) each record relating to a transaction or dealing concerning a firearm, a spare barrel for a firearm, a firearm frame or a firearm receiver is, in accordance with the regulations, sent to the Commissioner for inclusion of the particulars in the Register and in order to update the Register.
(1A) Subsection (1) (b) does not apply in relation to:
(a) a firearm that is not required to be registered, or
(b) a transaction or dealing concerning a firearm or other thing until such time (if any) as the transaction or dealing involves a change in the ownership of the firearm or thing.
(1B) However, subsection (1A) does not affect any other requirement under this section to keep a record of the transaction or dealing concerned or to produce the record for inspection by a police officer.
(2) Each record must contain the following particulars for each acquisition, receipt, supply or transfer of a firearm or firearm part by the dealer concerned from or to the other person dealing with the dealer:
(a) the name and address of the other person,
(b) the number of the other person's licence or permit authorising the other person to possess the firearm or firearm part,
(c) the number of the other person's permit to acquire the firearm,
(d) for each firearm or firearm part that is or has been in the possession of the dealer:
(i) the dates of its initial acquisition or receipt by the dealer and of its subsequent supply or transfer out of the possession of the dealer, and
(ii) the name and address of the person who initially gave possession of it to the dealer, and
(iii) when it is supplied or transferred out of the possession of the dealer-its make, serial number, calibre, type, action and magazine capacity (if any),
(e) such other particulars as may be prescribed by the regulations.
(3) An entry required to be made in a record concerning the acquisition, receipt, supply or transfer of a firearm, firearm frame or firearm receiver must, subject to the regulations, be entered within 24 hours of the transaction concerned.
(4) A record must be made and kept in the form approved by the Commissioner.
(5) If a licensed firearms dealer ceases to hold such a licence, the former licensed firearms dealer must provide the Commissioner with a record of all transactions during the 2 years immediately preceding the date on which the licence ceased to be in force.
(6) A person who is required to ensure a record is kept or to keep a record under this section, must, on demand made by a police officer at any time:
(a) produce the record to that officer and permit that officer to inspect and make copies of any entries in it, and
(b) produce to that officer all firearms and firearm parts in the possession of that person, and
(c) furnish to that officer any information in that person's possession with respect to any firearm or firearm part that has been manufactured, acquired or received under the authority of the person's firearms dealer licence, or that the person has in his or her possession or has supplied or otherwise transferred or repaired under the authority of the licence.
(7) Any person making an alteration to an entry in a record required to be kept under this section must do so by interlineation or striking out and not by erasure.
Maximum penalty: 20 penalty units.
Section 46 of the Act provides in respect of quarterly returns:
46 Quarterly returns
(1) A licensed firearms dealer must, within 14 days after the end of the months of March, June, September and December in each year, forward a return to the Commissioner which contains the particulars for the preceding quarter that are required to be recorded under section 45 (2).
Maximum penalty: 50 penalty units.
(2) This section does not prevent a person from forwarding returns at more frequent intervals than this section requires.
(3) The return is to be in the form approved by the Commissioner.
The Respondent's Case
The Respondent relies on a bundle of documents filed pursuant to section 58 of the ADT Act; statements provided by Detective Senior Constable Christopher Burston; Mr Lawrence Campbell; Senior Sergeant Julie Tillott; and Steven Wilson; and photographs of firearms and other items seized on 15 August 2012. Mr Campbell, Detective Senior Constable Burston and Senior Sergeant Tillott also gave evidence at the hearing and were cross-examined.
The evidence concerns a number of incidents involving the Applicant. For the most part the facts relating to those incidents are not in dispute. The Respondent contends that all the circumstances indicate that the Applicant should not be permitted to hold a firearms licence and have access to firearms. The Respondent contends that not only does the Applicant reside with a person with a history of significant firearms offences, but her own conduct raises doubt over her ability to manage and control firearms in accordance with the strict and prescriptive legislative regime.
Mr Mattson submitted that licence holders are expected to not only comprehend and understand their obligations but also to comply with those obligations.
Unregistered Firearms
Mr Mattson referred to the fact that the unregistered firearms in respect of which Mr Howard was charged were at the Premises and submitted that it is implausible that the Applicant did not know that Mr Howard had unregistered firearms on the Premises. However, he also asserts that if she did not know, then it demonstrates a lax attitude to ensuring effective control and monitoring of her Premises and to her obligations to regarding firearm safety under the Act.
Quarterly Returns
It is not disputed that the Applicant did not lodged quarterly returns as a club armourer or as a director, employee of ACME Sports. Mr Mattson referred to the Applicant's failure to ensure that those quarterly returns were lodged and submitted that the failure is not a trivial omission.
Mr Campbell gave evidence of the role played by the Firearms Registry to ensure that it received the necessary information regarding firearms transactions. This included providing dealers with the necessary software to allow them to submit the information and training in the use of the software. He conceded that not all dealers provided quarterly returns but also stated that others had also been prosecuted for the failure to provide the returns. He stated that the quarterly returns are necessary for audit purposes.
Imitation Firearms
The Respondent contends that a number of imitation firearms were located at the Premises on 15 August 2012; that the Applicant did not have a permit to possess those items; and that they were not stored in compliance with the Act.
The Respondent relies on Mr Wilson's evidence in regard to these items in support of its assertion that they are not like toy guns but are in fact imitation firearms.
Mr Mattson submitted that possession of imitation firearms is a contravention of section 4D of the Act and that section 4D is very broad. He argued that section 4D includes items such as those located at the Premises on 15 August 2012.
He further submitted that it is not relevant that the items had been declared to customs when the Applicant brought them back to Australia after an overseas trip, or that customs did not prevent the Applicant from keeping those items.
Attempt to conceal a firearm and silencer
The Respondent contends that the Applicant's alleged attempt to conceal a firearm and silencer from police during the execution of the search warrant on 15 November 2012 gives rise to concerns in respect of her suitability to hold a firearm's licence. By reference to the Respondent's material, and the statement of Detective Senior Constable Burston in particular, Mr Mattson identified the following facts and chronology of events in relation to the incident:
a) On 6 August 2012, at about 4.30pm, a hold up alarm was activated at the Premises and police responded to the call. The police who responded to the call ascertained that it was a false alarm and Mr Howard is recorded as stating that he must have accidentally set it off.
b) At this time, police who attended observed that the roller door to the garage was open and numerous firearms could be seen unsecured.
c) On 14 August 2012, the Licencing Police applied for and were granted a search warrant from Newcastle Local Court.
d) On 15 August 2012, the search warrant was executed. An occupier's notice was served on the Applicant and Mr Howard arrived at the Premises 40 minutes later.
e) One of the officers who assisted with the execution of the warrant was Detective Senior Constable Burston of the State Crime Command.
f) Detective Senior Constable Burston recalled that at approximately 1.30pm on 15 August 2012, in the garage of the Premises, Mr Howard was seen standing suspiciously behind the Applicant.
g) When the Applicant walked away from Mr Howard and into the house, bulky objects were recognised at the back of the Applicant's tracksuit pants.
h) Detective Senior Constable Burston followed the Applicant into the house at the Premises and proceeded to question the Applicant about the nature of the objects in her tracksuit pants.
i) The Applicant denied knowledge of those objects.
j) Detective Senior Constable Burston removed the objects from her tracksuit pants and back pocket to reveal a hand gun and silencer, which he showed to the Applicant.
k) The Applicant conceded to Detective Senior Constable Burston that Mr Howard placed objects in the back of her clothing and told her to walk inside the house, a request she obliged without protest or questioning.
Mr Mattson submitted that it is implausible that the Applicant was not able to determine at the time that a firearm and silencer had been secreted in her clothing. He further submitted that her dishonesty in arguing that she had no knowledge of the firearms on her person and that she did not give permission for them to be on her person, demonstrates that it is not in the public interest for her to hold a firearms licence.
The Smith & Wesson Pistol
The Respondent contends that the Applicant's conduct in regard to the Smith & Wesson, in October 2009 and December 2009, was not only dishonest but it was also in breach of the Act.
By reference to the Respondent's material, Mr Mattson identified the following facts and chronology of events in relation to the Smith & Wesson:
a) The Smith & Wesson was a prohibited pistol because it was a self-loading pistol with a barrel length of less than 120mm.
b) On 15 September 2001, the Smith & Wesson was sold by Mr Howard to Kevin Potts Security Services Pty Ltd.
c) On 1 August 2003, the Smith & Wesson was sold by Kevin Potts Security Services Pty Ltd to ACP.
d) On 31 October 2009, ACP reported the Smith & Wesson as stolen.
e) It was alleged, and ultimately proven in other proceedings before this Tribunal, that Mr Potts procured his son, Mr Troy Majoribanks, to take the Smith & Wesson from ACP to give it to Mr Potts when he was not entitled to have the firearm.
f) On 14 October 2009, the Applicant completed a Permit to Acquire for and on behalf of Mr Potts in respect of the Smith & Wesson. The Permit to Acquire was issued on 23 September 2009 and expired on 22 December 2009. As the Smith & Wesson was prohibited, Mr Potts was not allowed to acquire it when the Applicant completed the paperwork for the sale on 14 October 2009.
g) On 2 November 2009, police confiscated the Smith & Wesson as part of the investigation into offences by Mr Majoribanks. The Smith & Wesson was in police custody and recorded in a police Exhibit Book held at Waratah Police Station. The Exhibit Book recorded there was no barrel with the pistol.
h) On 30 December 2009, the Firearms Registry received a Notice of Purchase completed by the Applicant, in her purported capacity as a club armourer.
i) The completed form states that Mr Potts, in his personal capacity and as the permit holder, purchased the Smith & Wesson from ACP. Mr Potts signed as both the purchaser and the seller. The date of purchase was altered by the Applicant from 14 October 2009 to 22 December 2009.
j) On 30 December 2009, the Firearms Registry received a Firearms Disposal Advice, signed by Mr Potts on behalf of ACP. The date was also altered by the Applicant from 14 October 2009 to 22 December 2009.
k) Also on 30 December 2009, a Firearm Registration Certificate for the Smith & Wesson was sent with the notice of purchase and firearm disposal advice. The barrel length recorded on the certificate was also changed by hand from 100mm to 120mm.
I) The Applicant recorded in her firearms records that she maintained under the Act, that she transferred the Smith & Wesson on 22 December 2009.
m) On or about 20 January 2010, the barrel of the Smith & Wesson was lengthened by Gold Coast Shooting Supplies at the request of Mr Howard.
n) On about 31 March 2010, the barrel of the Smith & Wesson was entered into the Exhibit Book at Newcastle Police Station.
For the most part this chronology is not in dispute. However, there is disagreement between the parties in regard to when Gold Coast Shooting Supplies lengthened the barrel of the Smith & Wesson.
Senior Sergeant Tillott gave evidence of phone calls that she had with Mr Dick Haynes, the Managing Director of Gold Coast Shooting Supplies. Her evidence is that Mr Haynes told her that he sent the lengthened barrel of the pistol back to Mr Howard on 20 January 2010.
Mr Haynes gave evidence at the hearing in which he cast doubt on that being the case.
In relation to the Applicant's evidence that the Smith & Wesson was transferred to Mr Potts on 22 December 2009, Mr Mattson submitted that this could not have occurred because the firearm was in police custody from 2 November 2009. He points to section 45 of the Act, which provides for firearm dealer and club armourer record keeping obligations.
The Respondent's evidence is that Mr Potts was not a director of ACP and therefore was not entitled to enter transactions on behalf of ACP. This would have been apparent to the Applicant if she had checked Mr Potts' licence as required by the Act. If she had done so she would not have completed the recording of the transaction on 14 October 2009. Mr Potts did not have a permit to acquire the Smith & Wesson as it was prohibited. Therefore, the Applicant could not have witnessed such a transaction.
Mr Mattson submitted that the recording of the transaction on 14 October 2009 and on 22 December 2009 was in breach of the Act. He also submitted that the altering of dates on the paperwork was dishonest.
The Applicant's Domestic relationship
It is not in dispute that the Applicant is in a long-term domestic relationship with Mr Howard or that Mr Howard is prohibited from using and possessing firearms. As a result of his convictions, Mr Howard is not eligible to make an application for a firearms licence until 2022.
Mr Mattson submitted that to the extent the Applicant says she was unaware of Mr Howard's conduct, despite her interest in the Premises, her role as a club armourer and employee/director of ACME Sports, the Applicant demonstrated little regard for her serious obligations under the Act. He further submitted that, by her conduct in concealing a hand gun and silencer from Police on 15 August 2012, the Applicant demonstrated that she is influenced and persuaded by Mr Howard. He argued that the public would be rightly concerned were the Applicant to be given her licence in these circumstances.
He submitted that there is reasonable cause to believe that Mr Howard would be able to coerce her into giving him access to her firearms because when her honesty was tested, she failed.
Dishonest conduct and disregard for the law
Mr Mattson contends that the Applicant has demonstrated dishonest character on two separate occasions. He submitted that the first occasion was in regard to the Smith & Wesson, in 2009, and the second occasion was when she assisted Mr Howard in concealing a firearm whilst her Premises were being searched in 2012.
Lack of frankness and contrition
Mr Mattson contends that the Applicant's lack of candour and frankness is demonstrated by her insistence that:
(a) the Smith & Wesson transfer was lawful and completed in December 2009;
(b) the imitation firearms are not replicas, are toys and do not put the public at risk; and
(c) she was not aware of what items were placed in her clothing on 15 August 2012.
Mr Mattson further contends that the Applicant is not contrite for her actions, that she does not show any appreciation for the seriousness of those incidents and her involvement or failures, and that her explanations are concerning.
He submitted that in the circumstances, the correct and preferable decision is to affirm the Respondent's determination to revoke the Applicant's firearms licence.
The Applicant's Case
The Applicant relies on her own evidence and that of Mr Howard and Mr Haynes.
Mr Howard's evidence
Mr Howard provided a written statement and also appeared at the hearing and was cross-examined.
He gave evidence in relation to the role that he and the Applicant played in regard to the Newtec Pistol Club and their involvement in Acme Sports. This evidence was consistent with that of the Applicant and is not challenged. He stated that while the Applicant had access to all the firearms, she did not have intimate knowledge of all of the items that were stored at the Premises. He stated that she was not aware that he had possession of unregistered firearms. He said that those firearms were secreted and/or not clearly visible.
In relation to the assertion as to the failure to lodge quarterly returns, his evidence was consistent with that of the Applicant i.e. that they were not aware of the obligation to lodge the returns.
Mr Howard stated that he has had nothing to do with firearms since the revocation of his licence. He further stated that should the Applicant have her firearms licences returned to her, he has no interest in gaining access to her firearms, nor would he attempt to coerce her into making firearms available to him.
In relation to the Respondent's assertion that he and the Applicant attempted to conceal a firearm and silencer during the search conducted by Police on 15 November 2012 Mr Howard stated that he placed a pistol in the back of the Applicant's tracksuit pants during the conduct of the search. He said that when he did so, the Applicant had her back to him and she could not see what he put in her pants. He said that he did it on the spur of the moment. He further said that he doesn't know why he did it because he was entitled to possess all manner of firearms, ammunition and prohibited firearms.
Mr Howard denied that he has not participated in illegal activities involving firearms other than the breaches of the Act regarding the failure to register firearms and the failure to lodge the Returns.
He asserted that when Police attended the Premises on 6 August 2012 he was standing in the garage of the Premises with three male friends. He further asserted that at that time all the firearms were properly secured in accordance with his obligation under his dealer's licence; there were no empty or half empty beer bottles; he had not consumed any alcohol that day, nor had any of the male friends who were in attendance at the Premises on that day.
Mr Howard conceded that the Police who attended may have seen a number of wooden rifle stocks on top of a shelf near the entrance to the garage. He said that those rifle stocks did not contain the action or the barrel of a firearm but this may have given the Police the impression that there were firearms unsecured.
Mr Haynes' evidence
Mr Haynes gave evidence that when he initially spoke with Senior Sergeant Tillott he did not recall details of the transaction with Mr Howard regarding the lengthened Smith & Wesson barrel. He said that following the initial phone call with Senior Sergeant Tillott he located the invoice for the work and then had a further phone call with Senior Sergeant Tillott. He does not dispute that the invoice is dated 20 January 2010. However, he outlined an informal relationship with Mr Howard and stated that Mr Howard would visit him several times each year. It is possible that the lengthened barrel was returned to Mr Howard earlier than the date specified on the invoice.
Unregistered Firearms
The Applicant asserted that she was at the Premises when Police attended on 6 August 2012. She disputes the Respondent's assertion that numerous firearms could be seen unsecured. She said that there were no firearms within view of Police or anyone else for that matter and that all firearms were properly secured. She conceded that the Police may have seen a number of rifles stocks which were stored on top of a cupboard inside the garage. The Applicant also disputes the Respondent's assertion that Mr Howard had been drinking alcohol that afternoon, that his speech was slurred or that he smelt of alcohol.
In relation to the Respondent's assertion that the Premises did not meet the requirements for safe storage for a firearms dealer, the Applicant stated that this is not the case and that the Premises were certified as complying with the requirements of safe storage for a firearms dealer. She said that although charges were brought against Mr Howard for this they were withdrawn.
The Applicant conceded that charges were brought against Mr Howard in relation to a number of pistols which were not registered. She also conceded that she did not undertake regular checks for firearms in the locations where they were found. She said that the pistols were hidden and that she was not aware that they existed. She also said that that she was not aware of the existence of a number of barrelled actions located underneath a shelf. She said that most of them were missing bolts and other parts and were not capable of being fired.
In reference to two other firearms - a shortened 12 gauge shotgun and a firearm based upon a martini cadet action, the Applicant stated that she was not aware of their existence until the time of the seizure. Nor was she aware that those firearms were not registered.
Quarterly Returns
The Applicant stated that her involvement in the business of Acme Sports was that she predominantly did the computer transactions. Mr Howard was responsible for the purchase and disposal of firearms and ammunition within the business.
In relation to the Respondent's assertion that she failed to lodge quarterly returns over a number of years, the Applicant stated that charges brought against Mr Howard in relation to these offences were dismissed. She said that both she and Mr Howard were under the misapprehension that when dealers went 'on line' in November 2006 there was no longer a requirement to do paper returns. She said that they unwittingly assumed that the Returns were no longer required.
The Applicant stated that when transactions are completed on line, the Registry provides a transaction number as an acknowledgment that the transaction has been noted and recorded by the Registry. Furthermore, they regularly received a list of transactions from the Registry which they then checked to ensure that all the transactions were correctly recorded. The document was then forwarded to the Registry with any alterations. She said that there appeared to be no logical reason to do quarterly returns as well and that at no time since 2006 did any person at the Firearms Registry raise with her the issue of the returns despite the fact that she had phone contact with the Registry every week.
Mr Sundstrom submitted that the simple explanation for the failure to provide the quarterly returns is that the Applicant was not aware that she needed to provide them. It is not in dispute that all the other required information was submitted and the quarterly returns could have been easily made if she had been aware. He said that it is inconceivable that she would not have done so if she had been aware of the need to do so.
Imitation Firearms
In relation to the Respondent's assertion that she was in possession of imitation firearms, the Applicant stated that those items are neither imitation firearms nor are they replica firearms. She said that they are adult's toys. They are small pistol cigarette lighters some of which she obtained when she went overseas and declared them to customs on her return. She said that most of the lighters were purchased in Australia from retail outlets and tobacconists. She said that the cigarette lighter pistols had a bright red plastic object protruding from the barrel similar to toy guns and that they did not appear to be a real firearms. Further, she stated that an item which the Respondent referred to as an "imitation rifle" was a 16 inch toy rifle and that it was obvious that it was not a real firearm.
The Applicant stated that she has not been charged with respect to those cigarette lighters.
Mr Sundstrom submitted that the Tribunal would not be satisfied that these items are in fact imitation firearms. He submitted that the items are not before the Tribunal and that the photographs are not sufficient to allow the Tribunal to make a determination on the issue. He said that the items are not functional, are not made from gun metal and have a protrusion from the barrel. An average person would not say they were a firearm.
Attempt to conceal a firearm and silencer
In relation to the Respondent's assertion that she attempted to conceal a firearm and silencer during the search conducted by Police on 15 November 2012, the Applicant stated that Mr Howard placed an object in the back of her tracksuit pants as she was walking from the garage towards the house. She said that she was not aware of what Mr Howard had placed there and that while she was told it was a handgun, she has never seen the object. She conceded that she was aware that he had put something there but didn't know what it was. She did not object to him doing so and didn't ask him why he did so. She conceded that she assumed that Mr Howard was trying to conceal something that was related to the Police search of the Premises.
The Applicant stated that the possession of such a handgun was authorised by the dealer's licence but that she did not give Mr Howard permission to put it on her person.
Mr Sundstrom submitted that while the Applicant has been unable to explain her actions in relation to this incident, the Tribunal should consider that it reflects a bad decision made in a stressful situation and one which the Applicant now regrets. He further submitted that it a single issue in an otherwise unblemished record.
The Smith & Wesson Pistol
The Applicant stated that she was aware that Mr Potts was a Director and Principal of ACP and that ACP had purchased a Smith & Wesson Semiautomatic Pistol for use in conjunction with its security business.
She said that Mr Potts approached her in October of 2009. He had a Permit to acquire, to purchase a handgun, which had been issued on 23 September 2009 and was due to expire on 22 December 2009. She said that it was her understanding that that Mr Potts owned the pistol because he was a Principal of ACP and that he was entitled to possess the pistol. She did not check his licence to confirm that this understanding was correct. She said that she could not transfer the pistol to Mr Potts because the length of the barrel did not meet the minimum requirements of the firearms legislation.
The Applicant stated that Mr Potts arranged with Mr Howard to have the pistol sent to a Gunsmith to have the barrel lengthened to a legal length. This was subsequently done.
She said that Mr Potts initially sought to transfer the pistol to him on 14 October 2009. That was the date of the initial Firearms Disposal advice. However, it was not transferred to Mr Potts until 22 December 2009 - after the pistol was returned with the legal length barrel. The initial Firearms Disposal advice was dated 14 October 2009. For that reason the date was altered. She said that the pistol was never transferred to Mr Potts before the barrel was altered to a legal length.
Mr Sundstrom submitted that no actually damage or injury was caused by the Applicant's conduct. The incident arose because the Applicant was trying to assist Mr Potts and did not know that he did not have the authority to deal with Smith & Wesson on behalf of ACP. He further submitted that if the Applicant is able to retain her licence she will not be undertaking this kind of work. She merely wants to compete and to socialise and therefore the issues of concern to the Respondent in this matter will no longer be cause for concern.
The Applicant's Domestic relationship
The Applicant stated that she only seeks the restoration of her firearms licence so that she can participate in target shooting. She said that she has two safes which meet the safe storage requirements for category ABH Firearms and which were used and approved as meeting the storage requirements in connection with the dealer's licence. They are combination safes and she would be the only person with the combination and the only person with access to those firearms.
She said that under no circumstances would she allow herself to be coerced by Mr Howard, nor does she believe that Mr Howard would seek to coerce her into giving him access to such firearms.
Mr Sundstrom submitted that the Respondent's concern that the Applicant may not personally exercise continuous and responsible control over firearms because of the Applicant's way of living and domestic circumstances not been made out. There is no reasonable cause to believe that Mr Howard would be able to coerce her into giving him access to her firearms.
Dishonest conduct and disregard for the law; lack of frankness and contrition
Mr Sundstrom submitted that the Applicant was a witness of truth and that the Tribunal would not be satisfied that she had acted dishonestly. He submitted that the security of the Premises is more than adequate and that while the Applicant had conceded that she had not undertaken routine checks of the Premises, she would have noticed if firearms had not been properly secured.
Mr Sundstrom further submitted that the decision is discretionary and that the issues in this matter of on the low end of concern.
Consideration
The Tribunal is to decide what the correct and preferable decision is having regard to the material then before it. The Respondent contends that it is not in the public interest for the Applicant to hold a licence.
The Tribunal has considered issues relating to the public interest in numerous matters. Judicial member Huntsman provided a useful summary of various decision in Sydney Pistol Club v Commissioner of Police NSW Police Force [2012] NSWADT 121 where she stated:
61 ... In deciding the current matter I have focused on the evidence in this particular case, the findings of fact which I have made as set out in these Reasons for Decision, and the applicable legislation. I have also considered guidance offered in prior tribunal decisions. In this matter I have also carefully considered the issue of whether it would be contrary to the public interest for the applicant to be licensed. That the public interest is a consideration for the Tribunal is clearly set out in the legislation: refer sections 11(7) and 24(2) of the Act set out above (and also s11(8) of the Act and clause 19 of the Regulation).
62 A discussion of relevant case law was set out by the Tribunal in the case of 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 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."
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".
63 The likelihood of risk is to be assessed by reference to relevant prior conduct: Brosowski v Commissioner of Police [2003] NSWADT 182 at [41].
64 In the case of Bottomley v Commissioner of Police, New South Wales Police [2005] NSWADT 211 the Tribunal observed:
Nevertheless, I am satisfied that his conduct indicates a lack of attention to the storage requirements of the Act. In my view, the Commissioner is rightly concerned that all licensees have an appropriate level of understanding and appreciation of these requirements. While I am satisfied that Mr Bottomley's failures are on the lower end of the scale of firearm offences, they evidence an attitude that is still significant.
19 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. Bottomley's conduct 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.
65 In the case of DP v Commissioner of Police, New South Wales Police [2007] NSWADT 27 the tribunal considered the public interest provisions of the Act, the case also focussed on the consideration which could be given to spent convictions. The tribunal found in that case that the applicant's conduct was risky and exhibited a lack of understanding of obligations under the Act. The tribunal stated:
57 In my view the circumstances relating the conduct which led to DP being charged, and the other conduct detected at that time with respect to his possession of an unregistered firearm and his intention to use a registered firearm in a foolhardy and risky manner, give rise to significant public interest concerns should DP continue to hold a firearms licence. I refer not only to the overriding public interest in protecting the public safety, but also to the public interest in ensuring that licence holders have an understanding of their obligations, and the maturity to follow them, as well as the public interest in ensuring the maintenance of a credible and consistent licensing regime, which ensures that the possession of a firearms licence is privilege in accordance with the principles and objects of the FA Act. Those concerns are sufficient to justify the revocation of his firearms licence on public interest grounds.
66 The Tribunal observed in Tolley v Commissioner of Police, NSW Police [2006] NSWADT 149 :
27 The Firearms Act 1996 sets up a comprehensive scheme for licensing persons in New South Wales to possess and use firearms. The principles and objects of that Act are set out in section 3. Relevantly they are to confirm that firearm possession and use is a privilege conditional on the overriding need to ensure public safety and to improve public safety by imposing strict controls on the possession and use of firearms.
28 This was acknowledged in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 at 27:
"One of the objects of the Act, as set out in s 3, is to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety."
29 This principle has again recently been confirmed as fundamental to the Firearms Act 1996 in Rosenboom v Commissioner of Police, New South Wales Police [2006] NSWADT 10 at paragraph 20.
30 At paragraph 28 of Ward the Tribunal continued:
"The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk."
31 Although in that case the consideration for the Tribunal was whether the Applicant themselves would pose any risk to public safety if access to firearms were granted, similar considerations apply in the present case. Given the breadth of the Commissioner's discretion and the overriding object of public safety there is no basis for differentiating between conduct of the Applicant themselves and conduct of another which may impact on public safety in the context of a firearms licence.
32 Public safety is not defined in the Firearms Act 1996. However, the Tribunal's Appeal Panel considered the public interest in the context of security industry licencing in Commissioner of Police, New South Wales Police Service v Toleafoa [1999] NSWADTAP 9. At paragraph 25 it stated that the public interest is:
"... an inherently broad concept giving the [decision maker] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual.
33 These comments have been held to apply equally to the firearms legislation (see Ward at para 33).
34 See also Comalco Aluminium (Bell Bay) Ltd v O'Connor & Ors (1995) 131 ALR 657 at 681:
"The purpose of the reference to public interest is to ensure that private interests are not 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".
35 Public safety is similarly broad and involves similar considerations.
67 In the case of Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218, which was a case where the public interest was the only ground relied upon for revocation, the tribunal observed:
21 The sole ground relied upon by the Respondent in these proceedings was cl 17 of the Regulations which provides that 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 hold that licence.
22 I accept Mr Lunney's submission that the fact Mr Hill committed an offence under the Firearms Act of itself does not mean that his licence must be revoked. The relevant offence is not an offence, which leads to automatic revocation. (See for example s 24(1) of the Firearms Act). While the consequence of licence revocation may be that the licensee is in effect "punished" the discretion granted under s 24 should not be exercised for that purpose alone. Conversely, of course, a decision maker should not shy from an exercise of that discretion merely on the grounds that the licensee may suffer hardship and or inconvenience. While not determinative, an offence under the Firearms Act and/or a breach of a condition of licence will, in my view, be highly relevant to a decision to revoke a licence. All of the circumstances surrounding the offence must be taken into account.
23 The evidence shows that the victim of the shooting incident mercifully suffered only minor injuries. This does not detract in any way from the serious nature of the incident and Mr Hill's conduct. As he properly acknowledges, the incident could have ended tragically. The evidence shows that Mr Hill who had significant experience with firearms allowed two young boys, one unarmed and unlicensed, to run off into dense shrub, away from his view, in pursuit of a wild pig. The only conclusion that can be drawn is that Mr Hill was reckless in the supervision of his firearm. It is relevant that he had consumed alcohol before the incident. While the evidence does not indicate that Mr Hill was intoxicated or affected by alcohol at the time of the incident (nor is that the Commissioner's contention), in my view the consumption of any alcohol prior to the firearm use shows a serious lack of judgment and must be seen as reckless conduct.
24 The critical issue for determination is whether it is in the public interest for Mr Hill to continue to hold a firearms licence. As mandated by the legislation, public safety is to be given paramount consideration in any licensing decision. I concur with the view of Deputy President Hennessy in Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 [at 23] that the discretion to revoke a licence should be exercised in a way that promotes the responsible use of firearms. The legislation does not prescribe the factors to be taken into account in the exercise of this discretion. However in a case such as this it is apparent that a critical issue to be determined is whether the behaviour that gave rise to the offence will be repeated.
25 Mr Hill's sons now hold appropriate firearm licences. In my view there is little if any risk that Mr Hill will once again allow his firearm to be used by an unlicensed person. It is more difficult to determine whether he will in the future fail to maintain the high standards of care and concern for public safety as mandated by the legislation.
26 Mr Hill says, and I accept, that he is contrite and deeply regrets the incident. He claims that there is no chance of a repeat offence or of any offence relating to firearms. There is character evidence before the Tribunal that attests that Mr Hill is unlikely to re-offend and/or act in an inappropriate way in the use and possession of firearms.
27 This is the only offence (or adverse notification) in Mr Hill's otherwise unblemished history in dealing with firearms. However, I note that this is not the first time that he allowed an unlicensed minor to use his firearms, nor could I be comfortably satisfied on the material before me that this was the sole occasion he failed to exercise a reasonable level of care and supervision in respect of the use of his firearm.
28 It is course impossible to say with absolute certainty how any individual will behave in the future. The Commissioner is properly concerned that Mr Hill's serious lack of judgment and failure to properly supervise his firearms may be repeated. As I understand Mr Tunks to argue, notwithstanding the applicant's good character given the seriousness of the incident the public interest dictates that a decision maker err on the side of caution and, in effect, guarantee, by the revocation of the licence, that a similar incident will not be repeated.
29 Despite the fact that Mr Hill has shown genuine contrition and acknowledges the seriousness of the matters that gave rise to his licence revocation I am not satisfied on balance that that conduct and or similar conduct will not be repeated. Accordingly taking into account all relevant considerations, in my view it is not in the public interest for him to continue to hold a firearms licence.
68 The Appeal Panel of the tribunal in Lynch v Commissioner of Police, New South Wales Police Service (GD) [2006] NSWADTAP 43 stated at [46-48]:
46 The regulator of a licensing scheme will frequently be dealing with situations where licence-holders have not previously come to notice. Again, some allowance will often be made if the licence-holder's conduct is minor or has some special explanation. 47 In this instance the contraventions were numerous and very serious. That Mr Lynch escaped a criminal conviction does not mean that he should therefore automatically escape an administrative sanction against his licence. It is necessary for an administrator to take a stand in dealing with serious contraventions that is seen as credible by the broader community, and sends the appropriate signal to licence-holders as to what is unacceptable. The administrator and the Tribunal cannot take an approach, as seems to have been urged on behalf of Mr Lynch in this case, that ignores the systemic implications of its decisions.
48 In our view, the contraventions that occurred in this case were serious enough, giving due weight to Mr Lynch's history and the explanations given for his conduct, to make the Commissioner's and Tribunal's decisions the correct and preferable ones in exercise of the discretion given by s 24(2)(b)(ii). Similarly the separate 'public interest' basis for the decision was available in the circumstances. There were aspects of his conduct and explanations which gave rise properly, we think, to the concerns expressed about his misunderstanding of current policy in relation to the personal possession of firearms.
49 The new material filed in these proceedings (evidence of the course undertaken by Mr Lynch) shows a preparedness, we accept, to deal with the problem. It is also to Mr Lynch's credit that he acknowledged his guilt from the outset.
50 In our view, the decision of the Tribunal and the Commissioner should not be disturbed. In our view it remains the 'correct and preferable' one.
51 On the other hand, we think the 'public interest' case is not as strong as it was. Mr Lynch is contrite and has taken remedial steps. It may be that at some point in the future the Commissioner might be prepared to reissue a licence, possibly subject to special conditions in relation to the type and number of weapons that can be held and their manner of storage.
In the present matter the Respondent has raised a number of issues which cast doubt on whether it is in the public interest for the Applicant to continue to hold a firearms licence.
I note that the Applicant does not seek to play any role as a firearms dealer or armourer but merely wishes to compete in competitions and to socialise with friends who are licensees. However, as the cases referred to above make clear, the reference to public interest in the legislation is to ensure that private interests are not the only matters taken into account.
I note the Respondent's concern in relation to the unregistered firearms in respect of which Mr Howard was charged. On the evidence before me I am not satisfied that the Applicant failed in her obligations as a licensee with respect to those firearms. I accept the evidence that she did not know that Mr Howard had unregistered firearms on the Premises.
With respect to the Applicant's failure to ensure quarterly returns were lodged in respect of ACME Sports, I accept the evidence that she was under the misapprehension that there was no longer a requirement to do paper returns. Nevertheless, these returns are a legislative requirement and I accept that the returns are a necessary component of the audit trail. The Applicant should have been aware of the obligation. The legislature did not leave it to individual licensees to determine whether they would comply with provisions of the Act that they do not consider necessary.
In regard to the Respondent's contention that the Applicant possessed imitation firearms and that the possession of imitation firearms is a contravention of section 4D of the Act, I note the Applicant's argument that the items in issue are not in fact imitation firearms but are adult toys. In this regard, it is clear that section 4D of the Act is in very broad terms. The definition excludes any object that is produced and identified as a children's toy. That is not the case here. The Applicant contends that the items are adult toys. While I have not been shown the items, there is reasonable evidence about them. On the evidence before me it appears that each of the items 'substantially duplicates in appearance a firearm'.
It is not in dispute that the Applicant did not have a permit to possess imitation firearms and they were not stored in compliance with the Act. I accept that an imitation firearm could possibly be used in a hold-up.
Nevertheless, I am satisfied that each of these issues is on the low end of the scale in terms of risk to the public.
Of greater concern, in my view, is the Applicant's conduct in relation to the Smith & Wesson. I do not consider that the Applicant acted dishonestly in regard to that transaction. However, there was a clear failure on her part to follow the procedure that was necessary to comply with the legislation.
Mr Potts was not entitled to transfer ownership of the Smith & Wesson from ACP. The Applicant should have taken steps to satisfy herself that Mr Potts was entitled to do so. She was required to sight Mr Potts' firearm licence and if she had done so, her misunderstanding of his entitlement would have been corrected. She should have realised that the transfer on 14 October 2009 was not permitted and should not have completed the paperwork to permit the transaction. If she had followed proper procedure there would therefore have been no need for the alteration that she made on 22 December 2009.
In my view it is probable that Mr Haynes was mistaken in the information that he gave to Senior Sergeant Tillott. I accept the evidence that Mr Haynes had returned the barrel to the Applicant and/or Mr Howard on or before 22 December 2009. I therefore find no dishonesty on the part of the Applicant in regard to the alteration that she made on that date.
The same cannot be said of the incident on 15 November 2012. On the evidence before me, I find that the Applicant was involved in an attempt to conceal a firearm and silencer from police during the execution of the search warrant on 15 November 2012. The Applicant has not provided any explanation for her conduct but she clearly understood that she was assisting Mr Howard in concealing some item from the Police. This conduct occurred in relation to a situation where the police officers were exercising a power under the Act.
I accept that the Applicant regrets her conduct and that she has expressed remorse for it.
Nevertheless, on the totality of the evidence before me I cannot be satisfied that conduct in breach of the Act will not be repeated. I have formed this view on the basis of the various issues that point to a lack of attention to the detail of a licensee's obligations under the Act.
The critical issue for determination is whether it is in the public interest for the Applicant to continue to hold a firearms licence. As mandated by the legislation, public safety is to be given paramount consideration in any licensing decision. The discretion to revoke a licence should be exercised in a way that promotes the responsible use of firearms taking account of whether the behaviour that gave rise to the offence will be repeated.
In my view there is little if any risk that the Applicant will repeated omissions in relation to altering paperwork or facilitated the transfer of ownership of a firearm when the transfer is not permitted under the Act. This is simply because she will no longer undertake that work.
It is more difficult to determine whether she might fail to maintain the high standards of care and concern for public safety as mandated by the legislation.
In my view, the Applicant's conduct was mostly the result of lack of understanding of her obligations and lack of attention to detail. Her actions in attempting to conceal a firearm and silencer from police during the execution of the search warrant on 15 November 2012 cannot be explained in those terms. However, it seems to me to be out of character. Her record is otherwise unblemished. In my view there is little risk that she would repeat that conduct.
The Respondent is properly concerned about the Applicant's serious lack of judgment. On balance I am not confident that she would comply fully with the obligations imposed under the legislation unless she takes steps to re-educate herself in regard to her obligations as a licence holder.
Until she does so, it is my view that she should not be permitted to again hold a firearms licence. That being the case, it follows that the decision under review should be affirmed.
I note, however, that as I am not satisfied that there are issues of honesty that would prevent the Applicant from holding a licence if she were to undertake retraining in regard to her obligations and again apply for a firearms licence, it is my view that the Respondent could be satisfied that the risk to the public would be minimal and doubts over the Applicant's ability to manage and control firearms in accordance with the legislative regime could be met. In such circumstances, I would recommend that she be granted a licence for the purposes that she has identified.
ORDERS
1. The decision is affirmed
Registrar
**********
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
Decision last updated: 12 March 2014
0
1
4