Pittorino v Commissioner of Police (No 2)

[2022] NSWCATAD 166

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Pittorino v Commissioner of Police (No 2) [2022] NSWCATAD 166

Hearing dates:

14 February 2022

Date of orders:

25 May 2022

Decision date:

25 May 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

D Dinnen, Senior Member

Decision:

The Respondent’s decision to refuse the Applicant’s application for a firearms licence is affirmed.

Catchwords:

ADMINISTRATIVE REVIEW – Licensing – Firearms – criminal history – traffic history – close associates - public interest –– public safety

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Cases Cited:

Adams v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 194

Aubrey v Commissioner of Police [2005] NSWADT 266

Austrac Operations Pty Ltd v New South Wales (2003) FCA 1013

Comalco Aluminium (Bell Bay) Ltd v O’Connor and Others (1995) 131 ALR 657

Constantin v Commissioner of Police [2013] NSWADTAP 16

Dalziell v Commissioner of Police, NSW Police Force [2018] NSWCATAD 79

Davos v Commissioner of Police, New South Wales Police Force [2013] NSWADT 7

Director of Public Prosecutions v Smith (1991) 1 VR 63

Director-General, Ministry of Transport v FV (GD) [2008] NSWADTAP 60

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Esterman v Commissioner of Police, NSW Police Force [2014] NSWCATOD 70

Hamid v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 43

Joseph v Commissioner of Police, NSW Police Force [2017] NSWCA 31

Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145

Kocic v Commissioner of Police, NSW Police Force (2014) 88 NSWLR 159

Loye v Director General, Department of Transport [2000] NSWADT 145

LY v Commissioner of Police, NSW Police [2004] NSWADT 115

Lynch v Commissioner of Police (GD) [2006] NSWADTAP 43

Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97

Petas v Commissioner of Police, NSW Police [2013] NSWADT 137

Pittorino v Commissioner of Police [2021] NSWCATAD 350

Sawires v Commissioner of Police [2010] NSWADT 4

Tannous v Commissioner of Police [2011] NSWADT 116

Vella v Commissioner of Police [2003] NSWADT 91

Wiltshire v Commissioner of Police [2005] NSWADT 75

Category:

Principal judgment

Parties:

Robert Bartolo Pittorino (Applicant)
Commissioner of Police (Respondent)

Representation:

Solicitors:
Applicant self-represented
Maddocks Lawyers (Respondent)

File Number(s):

2021/226550

Publication restriction:

1. Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (CAT Act), the disclosure of the Confidential Statement and the Confidential Submissions or matters contained in the Confidential Statement and the Confidential Submissions (the Confidential material) is restricted to the Respondent, the legal representatives for the Respondent and the Tribunal.

2. Pursuant to s 64(1)(c) of the CAT Act the publication of the Confidential material is prohibited.

3. Pursuant to s 64(1)(b) of the CAT Act the publication of the transcript and record of that part of the hearing of this application that was conducted in private is prohibited.

4. Pursuant to s 64(1)(d) of the CAT Act the disclosure of the transcript and record of that part of the hearing of this application that was conducted in private is restricted to the Respondent, the legal representatives for the Respondent and the Tribunal.

5. Pursuant to ss 64(1)(b) and 64(1)(d) of the CAT Act, the contents of paragraph 22 in these reasons marked “[NOT FOR PUBLICATION]” are not to be published or disclosed to the Applicant or the public.

REASONS FOR DECISION

1. On 7 May 2021 Robert Bartolo Pittorino (the Applicant) made an application to the Commissioner of Police, NSW Police Force (the Respondent) for a Category AB Firearms Licence. On 21 June 2021 the Respondent refused the firearms licence application under s 11(7) of the Firearms Act 1996 (the Act) on the basis that:

Information maintained by the NSW Police Force indicates you have close associates with persons with extensive criminal history and this raises concerns for public safety.

In light of this, I consider the issue of a firearms licence to you would be contrary to the public interest.

2. On 22 June 2021 the Applicant lodged an application for internal review of that decision. The Applicant was not notified of the outcome of the internal review decision within 21 days, so the internal review was taken to be finalised on or about 13 July 2021 pursuant to s 53(9)(b) of the Administrative Decisions Review Act 1997 (ADR Act). On 9 August 2021 the Applicant lodged an application to the Tribunal seeking a review of the Respondent’s decision.

3. The proceedings were subject to an interlocutory hearing on 27 October 2021 before Senior Member Dunn in relation to the Respondent’s application for confidentiality orders under the Civil and Administrative Tribunal Act 2013 (CAT Act). Those orders were granted: Pittorino v Commissioner of Police [2021] NSWCATAD 350 and were continued during the hearing of the substantive proceedings before me on 14 February 2022 with respect to a confidential hearing that was held in the absence of the Applicant, and confidentiality orders made over the transcript of that confidential hearing and the evidence and submissions referred to and relied upon by the Respondent in that confidential hearing.

4. On 17 December 2021 the Applicant provided the Tribunal with six written letters or emails from referees, and a short statement from him dated 15 December 2021. On 1 February 2022 he provided the Tribunal a further statement in the form of an email, outlining his personal circumstances, response to the Respondent’s allegations and the reasons why he was seeking a firearms licence. He gave additional oral evidence, was cross examined, and provided the Tribunal with oral submissions at the hearing on 14 February 2022.

5. The Respondent relied on the Applicant’s extensive criminal history and traffic record as contained in the s 58 documents and Supplementary s 58 documents and provided the Tribunal with oral and written submissions, which I address further below. As noted above, a confidential hearing was held during which the Respondent relied on additional evidence and submissions over which the Tribunal made additional confidentiality orders.

Legal Principles

6. The Act establishes a legislative framework to regulate the possession, use, acquisition and supply of firearms. Section 75(1)(a) of the Act confers jurisdiction on the Tribunal to hear and determine the Application. Section 63 of the ADR Act requires the Tribunal to make the correct and preferable decision on the basis of the evidence available at the time, together with any additional or later material: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77.

7. Section 3 of the Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety:

(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

…

(2) The objects of this Act are as follows:

…

(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,

…

8. The power to grant an application for a firearms licence under s 11 of the Act is “tightly constrained” and in particular, significant emphasis is placed upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant: Kocic v Commissioner of Police, NSW Police Force (2014) 88 NSWLR 159 at [1]. The legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences: Davos v Commissioner of Police, New South Wales Police Force [2013] NSWADT 7, [117].

9. In these proceedings the Respondent relied on ss 11(4) and 11(7) of the Act to refuse the Applicant’s firearms licence application. Section 11(4)(a) of the Act provides that the Commissioner must not issue a licence to a person 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 and domestic circumstances.

10. The term “reasonable cause to believe” in this context was considered by the Tribunal in the matter of LY v Commissioner of Police, NSW Police [2004] NSWADT 115 at paragraphs [41]-[43]. There the Tribunal referred to the decision of Austrac Operations Pty Ltd v New South Wales (2003) FCA 1013 in which Emmett J stated that the words ‘reasonable cause to believe’ are

…not satisfied by mere assertion. The belief requires more than mere suspicion or conjecture. On the other hand, it is not necessary for an applicant to establish even a prima facie case. It is necessary, however, for the applicant to show objectively that there is reasonable cause for the relevant belief.

11. In LY v Commissioner of Police, NSW Police [2004] NSWADT 115, the Tribunal found that the Commissioner, must objectively be satisfied from established facts of the matters set out in paragraph 11(4)(a) of the Act.

12. Section 11(7) of the Act provides that the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest. The expression “public interest” is not defined in the Act, but has been discussed in a number of Tribunal decisions. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33] the Appeal Panel said that:

“The ‘public interest’ allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system.”

13. The public interest encompasses broader considerations beyond public safety. It is an inherently broad concept and is designed to give the broader interests of the community priority over private interests. In Comalco Aluminium (Bell Bay) Ltd v O’Connor and Others (1995) 131 ALR 657, 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 Commissioner’s consideration. The effect of the reference is to amplify the “scope and purpose” of the legislation.

14. In Director of Public Prosecutions v Smith (1991) 1 VR 63 the Court observed:

The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals.

15. In determining whether the issue of a licence is contrary to the public interest, the Tribunal is entitled to take into account criminal conduct, whether or not that conduct has resulted in an individual being charged or convicted of criminal offences, or whether the particular offences charged have not been proven or have been dismissed: Joseph v Commissioner of Police, NSW Police Force [2017] NSWCA 31 at [62] to [64]. It is the conduct rather than the conviction that is of concern to the Tribunal: Esterman v Commissioner of Police, NSW Police Force [2014] NSWCATOD 70 at [30].

16. In Lynch v Commissioner of Police (GD) [2006] NSWADTAP 43, the ADT Appeal Panel said that the relevant factors to be considered by the Respondent in determining whether to exercise his discretion include matters of general public policy, which were in turn said to be informed by the principles and objectives of the Act.

17. 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 [2005] NSWADT 75 at [25]. The public interest requires that all licensees be aware of and comply with the legislative requirements: Vella v Commissioner of Police [2003] NSWADT 91 at [41].

18. In Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145, Senior Member Scahill noted at [76] that “the Applicant’s traffic history shows a disregard for public safety and his own safety as he repeated traffic offences”. The Senior Member determined at [81] that:

The Applicant’s repeated breach of traffic laws and regulations aimed at ensuring public safety indicates a disregard for a regulatory scheme aimed at ensuring public safety. The firearms regulatory scheme, and licensing scheme, focuses primarily on public safety.

19. Where there has been or is the possibility of a threat to public safety, the public’s right to safety must outweigh an individual’s privilege to possess and use a firearm: Aubrey v Commissioner of Police [2005] NSWADT 266 at [21]. The licensing regime is also concerned with “making decisions that are consistent with a need to reduce any risks to a minimum”: Petas v Commissioner of Police, NSW Police [2013] NSWADT 137 at [36].

Consideration

Applicant’s criminal history

20. The Applicant’s criminal history includes:

1. on 28 August 1990, the Applicant was found guilty of offences of goods in custody and driving with a cancelled licence, for which he received fines and his driver’s licence was disqualified for six months;

2. on 4 August 1990, the Applicant was charged with offensive language, trespass on railway and crossing running lines, for which he was subsequently found guilty and issued fines; and

3. on 9 November 2008, the Applicant was charged with mid-range PCA, use of unregistered registrable Class A motor vehicle and resisting officer in execution of duty. He was found guilty of these offences, issued fines and also disqualified from driving for seven months.

21. The Applicant is also the subject of numerous additional COPS Event records:

1. E 9443985: On 25 November 1999, the Police were called to attend Avoca Street, Emu Plains in response to noise and driving complaints caused by a group of juveniles. The Applicant was identified as being amongst the group. Police gave a move on direction, and it was noted that the Applicant became aggressive with Police and pushed into Police several times.

2. Information report 11570364: On 17 May 2001 a report was made to Police regarding a physical and verbal altercation involving the Applicant in Clyde Street Mall, Kempsey. Police were unable to determine the true reason for the altercation, but expressed an opinion that it was drug related.

3. E 24862432: On 17 September 2005 Police stopped a vehicle driven by the Applicant for the purpose of a random breath test. The Applicant was unable to provide his driver’s licence when requested by Police. Police suspected that the vehicle was either stolen or contained stolen or unlawfully obtained property. Police conducted a search of the vehicle and found homemade nunchakus under the driver’s seat and two pairs of scissors wedged between the front passenger seat and door. The Applicant and passenger both denied knowledge of the items.

4. E 25371163: On 24 September 2005 Police sighted a car with the Applicant and a passenger seated in the front seats. The Applicant told Police that he had found syringes in the rear of the car which he had removed. Police found a satchel bag containing white powdered rock substance believed to be heroin outside the car and found a number of syringes in the car, a number of unused empty clear satchel bags, an empty saline bubble container, $130 cash in various denominations of notes and coins on the Applicant. Police noted that they were of the opinion that the Applicant and Mr Chaszczewski were administering a drug in the vehicle.

5. E 28238703: On 2 September 2006 the Applicant called ‘000’ and stated that Sonya Baines (who he had been in a relationship with for approximately four years) had stabbed herself and cut her throat following an argument between them. The Police attended and sighted that Ms Baines was in good mental and physical health. Ms Baines confirmed that she did not want to harm herself. Police noted that the Applicant smelt of alcohol.

6. E 30593759: On 30 June 2007 the Applicant was refused service and asked to leave Jupiters Night Club. Police attended, the Applicant became aggressive, and was subsequently arrested and issued an infringement notice for failing to quit when asked by the licensee.

7. E 34248534: On 28 June 2008 the Applicant and his son Thomas Pittorino were involved in an altercation where Thomas Pittorino reportedly chased his neighbour with a baseball bat after a verbal argument. The Applicant and his son went to the neighbour’s home and while Thomas Pittorino was still holding the baseball bat, it was alleged that the Applicant approached the neighbour’s wife and handed her a bullet stating words to the effect, “This is for your husband’. Police subsequently made an application for an AVO on behalf of the neighbours.

8. E 35609048: On 23 November 2008, the Police attended a property on Rosella Grove, Bidwell after it was reported that the Applicant had entered the premises and a Blower and stereo were missing.

9. E 42084854: On 24 September 2010 the Applicant interrupted an argument during which it was alleged he followed a party to the argument, grabbed her mobile out of her hand and threw it before grabbing her by her hair.

10. E 75784456: On 3 September 2020 Police pulled over the Applicant while he was driving a white Toyota Hilux utility and conducted a breath test. The Applicant submitted to a breath test which returned a reading in excess of the legal limit. The Applicant was arrested and conveyed to Bathurst Police Station where he was issued with penalty notices for driving with an unsecured load and driving with low range PCA. Due to the low range PCA reading, the Applicant’s licence was suspended for 3 months.

22. [NOT FOR PUBLICATION]

23. In written submissions the Applicant stated:

Admit and accept a lot of the charge that have been sent to me... I have no excuses for my past behaviour yes I have done some unexplainable things that may of harmed myself and others. My life has been a rollercoaster but I have learnt and acknowledge right from wrong. In my life I have wasted a lot of police resource to my stupidity and action's that I have no excuses for. I do understand that we have laws to abide by and they are in place for the safety of myself and others. Saying this I deny any doings with manufacturing selling or consuming recreational and non-recreational DRUGS.

24. The Applicant then went on to deny the allegations contained in COPS Event reports referred to at paragraphs 21(2), 21(3) and 21(4) above to the extent that they involved drug use or criminal associates, and denied his involvement or presence at the incident referred to at paragraph 21(7) above.

25. In oral evidence at the hearing the Applicant stated that he had “been an idiot”, “did go a bit silly”, “done a lot of silly things, 90% alcohol induced. I don’t drink anymore”. Under cross examination he admitted to having an occasional drink at a function or gathering, but stated he no longer “went out to drink”, that “a beer here or there is not really drinking”. He said that he had a new life and was educating himself, he had grown up. He wanted a firearms licence to sort out pests on his property without having to rely on his neighbours’ assistance. He was ‘not that way inclined’ to be a dangerous person in or to the public.

24. The Applicant explained there were two separate houses on the property, one in which he resided with his mother, for whom he was a carer, and one house in which his sister and her two kids resided. The sister referred to was Elizabeth Marsile, and the two kids were Michael Marsile and the partner of Dana Isaac.

Applicant’s traffic history

27. Since obtaining a New South Wales licence in 1990, the Applicant has received numerous traffic infringement notices, including:

1. drive vehicle with Insecure or overhanging load or load causing instability on 3 September 2020;

2. drive with low range concentration of alcohol on 3 September 2020;

3. exceed speed limit by not more than 10 KM/H whilst driving a motor vehicle (camera detected) on 7 April 2011, 12 June 2014, and 6 August 2017;

4. disobey traffic lights (camera detected) on 30 November 2014;

5. driver use mobile phone when not permitted on 31 July 2014;

6. exceed speed limit by more than 10KM/H but not more than 20 KM/H whilst driving a motor vehicle on 29 April 2011 and 21 June 2014;

7. drive with middle range concentration of alcohol resulting in the Applicant’s licence being disqualified for 7 months on 9 November 2008;

8. use of unregistered motor vehicle on 9 November 2008;

9. exceed speed limit by more than 15 KM/H but not more than 30 KM/H whilst driving a motor vehicle on 24 September 2004, 9 April 2005, 6 April 2005, 4 April 2007, 4 April 2007 and 20 October 2008;

10. exceed speed limit by not more than 15 KM/H whilst driving a motor vehicle (camera detected) on 9 March 1997, 12 December 2007, 13 September 2007 and 13 May 2008; and

11. not keep left on 14 January 2006.

Character evidence

28. The Applicant stated the following with respect to his character:

I have in the past 10 years I've been working on bettering myself and achieving great goals.

I have achieved all of the below.

*High risk work crane operator HRW 707700 DG,C6.

*Rail industry worker 000260809. *ASIC Sydney airport 9357.

*Working with children www2002567 V .D/L HR-R 1629FD.

All of these professions require a drug and alcohol test on a regular basis I will not jeopardize any of this as its taken me SO long to achieve.

29. The Applicant provided the Tribunal with six personal references dated between 9 December 2020 and 13 December 2021, from Sean Hartley of Glenmore Civil, Cody Lavender, Phillelaine12@[x].com, Vince DiPino of DiPino Concrete Services Pty Ltd, Pasquale Martire of Martire Concrete Services, and Kerry Aldridge. Only the reference from Kerry Aldridge, a neighbour since 2018, makes any reference to the Applicant seeking a firearms licence, and none refer to these proceedings or any of the matters of concern regarding the Applicant and his criminal history.

30. I give the Applicant’s personal references no weight in the circumstances, in line with authority in Loye v Director General, Department of Transport [2000] NSWADT 145 at [42] and [44], Sawires v Commissioner of Police [2010] NSWADT 4 at paragraph [49] - [53] and Director-General, Ministry of Transport v FV (GD) [2008] NSWADTAP 60, where the Appeal Panel said:

[40] Clearly an important factor to be taken into account in giving weight to references is what the authors know of the negative history of the subject, especially criminal convictions. Where references do not show a knowledge of negative history, they must be approached with caution.

31. The Respondent submitted that the Applicant is associated with a number of individuals who each have an extensive criminal history, including a number of charges in relation to the possession and supply of prohibited drugs and reports of prohibited weapons. In particular, Elizabeth Marsile and Michael Marsile both reside at the same property as the Applicant, and Dana Isaac previously resided with the Applicant up until early 2021. Both Elizabeth Marsile and Dana Isaac have come to the attention of Police on a number of occasions for a range of offences and their extensive criminal histories including drug possession, supply and firearms related offences.

32. The Applicant provided a short statement dated 15 December 2021 which stated:

I Roberto Bartolo Pittorino have no association to any of the formation people in the criminal history report. The only people I have any association with is Elizabeth Marsile as she is my younger sister Michael Marsile as he is my 14 year old nephew and Danna Isaac how she is married to my nephew. I have no clue as why these 3 people are of concern or what they may or may not have done to warrant set concern. Regardless I am still unable to understand how the action of other people affects my individual rights or what I can and can not do in my life.

33. In closing submissions the Applicant admitted:

I asked my sister and she told me about her drug habit. I’m helping my sister get off them. For the last 12 months, she’s been slowing down on drugs.

…

Dana Isaac [who is married to my] nephew who is in gaol for drug trafficking. He swore to me that he wasn’t selling drugs.

…

I can’t control what Lizzy [Elizabeth Marsile] and Mike [Michael Marsile] do.

34. I find the Applicant’s assertion that he has no association to the “people in the criminal history report” hard to accept where he has been clearly identified associating with certain individuals in the reports I 11570364, E 24862432 and E 25371163, but considering the significant passage of time since those event reports I find that there is insufficient evidence that the Applicant is currently (as opposed to previously) associated with those individuals. Whilst I do not accept that the Applicant has “no clue” why Elizabeth Marsile and Dana Isaac may be of concern to the Respondent, his knowledge of their criminal histories is not particularly relevant. The fact is that they each have or do reside at the same address as him, even if the Tribunal accepts they are in different houses at the same address. They are each close associates of the Applicant. I therefore accept the Respondent’s submissions at [31] above, based on both the Applicant and Respondent’s evidence before the Tribunal, including the Respondent’s evidence provided in the confidential hearing.

35. The licences the Applicant has obtained for crane operation, working on the rails and at Sydney Airport and a working with children check are of no relevance to the Tribunal’s assessment of the Applicant’s character in circumstances where the applications for those licences and checks, or their requirements, are not before the Tribunal. In the circumstances of there being scant positive evidence other than his assertions, the Tribunal cannot make a positive finding that the Applicant is of good character.

Personal and public interest

36. The Applicant provided the following information in relation to his personal interest in obtaining the firearms licence:

2016 my mother and myself purchased the property in mount Rankin where we live now we have a little hobby farm with livestock we have sheep's goats pigs and a cow this year alone I have lost 11 sheep 4 goats and 5L piglets due to dog attacks and there is nothing worse than watching our livestock getting attacked by wild dogs and there's nothing you can do for the fear of the dogs turning on you this is why I'm reaching it out for a gun licence as a tool to maintain and protect my livestock not as a weapon.   I am fully aware of the responsibilities in the handling of owning a firearm I have done a safety awareness course and I am a member of Maria's hunting club membership number 478.   

37. In his statement of 15 December 2021 he further stated:

I general recuir a legal firearm to manage pest and live stock on my property as I am losing stock to wild foxes and other feral pest alike. I have asked my Neighbours for help in the past but some times they are busy taking care of there own stock.

38. In evidence he explained that he had not provided an address for the safe storage of firearms, as required by the application form, because

Maria helped me fill out the application. Not sure why there was no safe storage address. I can’t read and write very well.

39. The ‘Maria’ he referred to was Maria’s Hunting Club, with which he claimed membership for the purpose of his application for a licence. He stated that he would not be storing any firearms at the gun club, but that he wanted to keep them at his property. Aside from protecting his livestock he wanted to go hunting and participate in skirmish with Maria’s Hunting Club.

40. There is no question that the public interest overrides any personal interest the Applicant may have in obtaining a firearms licence. Assessing the potential for risk to public safety is the subject of almost every firearms review application in this Tribunal. The question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near-absolute negative, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] – [66].

41. Turning first to the Applicant’s traffic history, as a result of his traffic infringements the Applicant’s licence was subject to one suspension for driving with a low range concentration of alcohol, nine instances of suspensions for failing to pay a fine, two instances of demerit point suspension, a court order for seven months disqualification for driving with a mid-range concentration of alcohol in 1991 and another licence disqualification for 6 months in 1990 for driving with a cancelled licence. While the majority of these infringements and penalties were some time ago, the Applicant’s latest infringement on 3 September 2020 including driving with low range concentration of alcohol is of concern as it is indicative of both a continued disregard for a regulatory scheme aimed at ensuring public safety, and that despite some of his assertions to the contrary, he continues to drink alcohol, which is the basis (according to him) of his past “silly behaviours”.

42. In line with the findings in Tannous v Commissioner of Police [2011] NSWADT 116 and Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145, I consider the Applicant’s overall history of traffic offences, some of which are repeated, shows a disregard for public safety as well as a disregard for the regulatory scheme aimed at ensuring public safety.

43. The Respondent relied on s 11(4) of the Act to the effect that because of the Applicant’s associations with persons who have extensive criminal histories, including a number of charges in relation to the possession and supply of prohibited drugs and reports of prohibited weapons, the Applicant may not “personally exercise continuous and responsible control over firearms because of his way of living and domestic circumstances”. In LY v Commissioner of Police, NSW Police [2004] NSWADT 115 the Applicant’s living and domestic circumstances were that, on her own evidence, she had a very close relationship with her husband and was living him on an isolated property. His firearms licence had been revoked as a result of assault charges. There was extensive evidence before the Tribunal that Mr LY exercised “complete authority and control over LY, as well as the other members of the household, and there will be little that she can do to prevent him having access to firearms if they are available in the house.” The Tribunal found s 11(4) of the Act applied in those circumstances because of her particular relationship with her husband.

44. I don’t agree that the evidence of the Applicant’s associations with Elizabeth Marsile, Michael Marsile and Dana Isaac objectively demonstrate that he may not personally exercise continuous and responsible control over firearms because of his living and domestic circumstances. The objective evidence only goes so far as to establish that they reside or have resided at the same address, not that they are in the same house or that there is a controlling or influential aspect to their relationship with the Applicant which may result in the Applicant relinquishing control of a firearms or firearms to any of them.

45. However I do accept that where the Applicant associates with persons who have significant criminal histories, that association may create a danger to public safety, pursuant to s 11(7) of the Act. In both Hamid v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 43 and Dalziell v Commissioner of Police, NSW Police Force [2018] NSWCATAD 79 it was held that where an Applicant voluntarily associated with persons having significant criminal histories or involvement with criminal organisations and activities, that association may create a danger to public safety with which the Commissioner is concerned. That person may therefore be not fit in the public interest to be in possession of a firearm. The Tribunal has also held in Adams v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 194 at [90] that even when there is no evidence that an Applicant has personally engaged in any drug dealing, firearms trafficking, violence or similar criminal activities, they could come under pressure to make guns or ammunition available to criminals or criminal organisations if association with same continues.

46. The Applicant stated that “… I am still unable to understand how the action of other people affects my individual rights or what I can and can not do in my life”. The objects of the Act at s 3(1)(a) make clear that a firearms licence and firearms possession is not an ‘individual right’ but is a privilege that is conditional on the overriding need to ensure public safety. The actions of other people, when they are associated with the Applicant, will necessarily affect what the Applicant can and cannot do in his life, especially where issues of public safety are involved. Based on the Applicant’s traffic history and his dismissal of his past “silly behaviours” resulting in police event reports and traffic infringements as being “90% alcohol induced” in circumstances where he believes “a beer here or there is not really drinking”, and the lack of positive character evidence, I am not satisfied that the Applicant has, in fact, changed sufficiently from the person who was the subject of the various police event reports and past traffic infringements to be assured that he would not engage in similar conduct in the future. Viewing the Applicant’s history, associations and circumstances as a whole, particularly his admitted association with persons who have significant criminal histories, I cannot be satisfied that granting the Applicant a firearms licence is consistent with keeping risks to public safety to a minimum, or that the Applicant is a person who is fit in the public interest to be in possession of a firearm.

Conclusion

47. The correct and preferable decision is therefore to affirm the Respondent’s decision to refuse the Applicant’s application for a firearms licence.

Orders

1. The Respondent’s decision to refuse the Applicant’s application for a firearms licence is affirmed.

**********

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: 25 May 2022