Polyzogopoulos v Commissioner of Police

[2001] NSWADT 166

CITATION:	Polyzogopoulos -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 166
DIVISION:	General Division
PARTIES:	APPLICANT Elias Polyzogopoulos RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	013101; 013102
HEARING DATES:	17/08/2001
SUBMISSIONS CLOSED:	08/17/2001
DATE OF DECISION:	10/09/2001
BEFORE:	Higgins S - Judicial Member
APPLICATION:	Firearms Act - firearms licence - revocation of licence or permit - Firearms licence - revocation of licence or permit - Security Industry Act - security industry licence - revocation or suspension of licence - Security industry licence - revocation or suspension of licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Firearms (General) Regulation 1997 Firearms Act 1996 Security Industry Act 1997 Security Industry Regulation 1998
CASES CITED:
REPRESENTATION:	APPLICANT J Crespo, barrister RESPONDENT M Spartalis, barrister
ORDERS:	1. The Commissioner’s decision to revoke the Category A and B firearms licence in the name of Mr Polyzogopoulos is affirmed; 2. The Commissioner’s decision to revoke the Class 1A, 1B and 1C security licence in the name of Mr Polyzogopoulos is set aside.

1 These proceedings relate to a decision made by the Commissioner of Police (“the Commissioner”) on 3 April 2001 to revoke a five year firearm licence and security industry licence issued to Mr Polyzogopoulos on 1 August 1998.

2 The basis for the revocation of the licences were the following convictions against Mr Polyzogopoulos by the Redfern Local Court on 1 November 2000:

(a) failing to keep firearms safely contrary to s.39 of the Firearms Act, 1996 (“the Firearms Act ”); and

(b) possessing a prohibited weapon (a cross bow) without a permit.

3 Mr Polyzogopoulos was fined $500 on each charge. He lodged a severity appeal on his sentence and on 15 January 2001 the NSW District Court:
(a) confirmed his conviction in respect of the charge of possessing a prohibited weapon; and

(b) made a finding of guilt, without a conviction being recorded, in respect of the charge of failing to keep firearms safely.

4 The Commissioner relied on the following grounds for revoking Mr Polyzogopoulos’ firearms licence (Category AB):
(a) s.24(2)(a) of the Firearms Act which provides that a licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind. In this regard, the Commissioner relied on s.11(5)(b) of the Firearms Act and cl 5(a) of the Firearms (General) Regulations (Firearms Regulations) ;

(b) s.24(2)(b)(ii) and (iii) of the Firearms Act which relates to a contravention of the Act or a condition of a licence;

(c) s.24(2)(c) of the Firearms Act which provides that a licence may be revoked if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence; and

(d) s.24(2)(d) of the Firearms Act which provides that a licence may be revoked for any other reason prescribed by the regulations. In this regard, the Commissioner relied on cl 17 of the Firearms 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 to hold it.

5 In respect of Mr Polyzogopoulos’ security licence (Class 1A, 1B & 1C) the Commissioner relied on similar grounds to those contained above. The relevant provisions in the Security Industry Act, 1997 are:
(a) s.26(1)(a), s.16(1)(a) and cl 11(a) of the Security Industry Regulations, 1998 (Security Regulations);

(b) s.26(1)(c) (fit and proper person); and

(c) s.26(1)(d) and cl 18 (public interest).

Evidence

6 Mr Crespo, on behalf of Mr Polyzogopoulos, tendered an affidavit sworn by Mr Polyzogopoulos on 9 August 2001, together with a certificate of proficiency from Wormald Security, a certificate in security operations from Secta Security, a first aid certificate and four references. In addition to this material, Mr Polyzogopoulos gave oral evidence.

7 Mr Spartalis for the Commissioner relied on the Commissioner’s file in respect of the firearms licence and the security licences together with a statement of Detective Senior Constable Steven Campbell. During the hearing, Mr Spartalis tendered a bundle of twelve photos of the firearms and the cross bow in respect of which Mr Polyzogopoulos was charged. The photos also included 2 photos of about twenty packets of ammunition.

8 From the material tendered by both parties and the oral evidence of Mr Polyzogopoulos, I find the following facts:

(a) Mr Polyzogopoulos resides with his elderly mother and he has held a security licence since the mid 1980’s. He has also held a firearms licence for several years;

(b) At about 7am on 29 June 2000, during the course of the execution of a search warrant at the premises of Mr Polyzogopoulos, a NSW Police officer asked Mr Polyzogopoulos where he stored his firearm;

(c) Mr Polyzogopoulos cooperated with the Police and took them to a bedroom upstairs where he directed them to a wardrobe standing in the middle of the room. The room was being renovated and there were several wardrobes in the room;

(d) Inside one of the wardrobes, in a leather cover, was Mr Polyzogopoulos’ registered firearm. In another wardrobe (locked) was an amount of ammunition and located under Mr Polyzogopoulos’ bed was a cross bow. This was contained in its original box together with a number of different arrow heads;

(e) Mr Polyzogopoulos’ residence is secure in that it has secure locked doors, steel bars on the windows and steel security doors;

(f) Mr Polyzogopoulos cooperated with the Police and pleaded guilty to the offences charged. He has no other criminal history nor is there any record of previous breaches of the Firearms Act or Security Act; and

(g) During the firearms amnesty, Mr Polyzogopoulos surrendered various firearms he had in his possession.

9 In his statement and during oral evidence, Mr Polyzogopoulos stated that his firearm had previously been stored in a safe, which Mr Polyzogopoulos no longer had due to the renovations of the upstairs bedroom. In his statement, he said that he had sold the safe when he commenced renovations. The same statement is reflected in the Police Fact Sheet in respect to the charges.

10 However, during cross examination, Mr Polyzogopoulos said he threw the safe out with everything else that needed to be thrown out at the time he commenced renovations.

11 Mr Polyzogopoulos stated that he had ordered a new safe on 12 June 2000 and in support he also produced an invoice for a safe. During cross examination, Mr Polyzogopoulos acknowledged that he was aware of the requirement to keep his firearm stored in a safe. He explained that he was forced to undertake the renovations due to storm damage and that the safe was one of the many things that needed to be discarded in preparation for the renovations.

12 In respect of the cross bow, Mr Polyzogopoulos stated that he had purchased this about fifteen years ago in Queensland and had only used it once shortly after he had purchased it. During cross examination he stated that he was not aware that the cross bow was a prohibited weapon and he could provide no explanation as to why it was under his bed, other than he had forgotten about it.

Submissions

13 Mr Crespo, for Mr Polyzogopoulos, submitted that the breaches by Mr Polyzogopoulos were technical in nature and that they were discovered by chance during the execution of a search warrant at his premises. As no charges were laid from information on which the warrant was issued Mr Crespo submitted that this information, and the fact that a search warrant was executed, was of no relevance to the Commissioner’s decision to revoke Mr Polyzogopoulos’ licence. I agree with that submission on the facts of this application.

14 Mr Crespo further submitted that the high level of security at Mr Polyzogopoulos’ home mitigates against the seriousness of the charges. He pointed to the otherwise good record of Mr Polyzogopoulos together with his co-operation with the Police as factors which must be taken into account. With this I agree. However, I do not agree with Mr Crespo’s submission that Mr Polyzogopoulos merely forgot about the existence of his cross bow. In my opinion, the evidence does not support such a conclusion even though the cross bow was in its original box.

15 It was not disputed that if Mr Polyzogopoulos seeks a renewal of his firearms and security licence when the current licences expire, the Commissioner will have no discretion and will be required to refuse the licences, because of Mr Polyzogopoulos’ conviction and finding of guilt (s.11(5)(6) Firearms Act and s.16(1)(a) Security Act). There was also no dispute that under the relevant provisions in respect of this application the decision to revoke an existing licence is a discretionary one (s.24(2) Firearms Act and s.26(1) Security Act).

16 Mr Spartalis for the Commissioner submitted that the Commissioner’s decision was the correct and preferable decision having regard to the objectives of the Firearms Act and the Security Act. He conceded that the evidence was such that Mr Polyzogopoulos was a good and honest person and that the breaches were discovered by chance. However, he emphasised the express statutory obligations that all firearms are to be kept in a place of safe storage. The failure to comply with this fundamental obligation together with possessing a prohibited weapon, Mr Spartalis submitted, constituted serious charges and not merely technical breaches.

Relevant Law

17 The relevant provisions of the Firearms Act are referred to in paragraph 4 of this my reasons for decision. In my opinion, it is unnecessary to deal with all of them as I have formed the view that in respect of the revocation of Mr Polyzogopoulos’ firearms licence, the Commissioner’s decision was the correct and preferred decision on the basis of the following provisions:
(a) s.24(2)(a), s.11(5)(b) and cl 5(a); and

(b) s.24(2)(b)(ii) and (iii).

18 As I have already stated, s.24(2)(a) of the Firearms Act provides that a licence may be revoked for any reason for which Mr Polyzogopoulos would be refused a licence had he been applying for one. One such reason is that provided under s.11(5)(b) which provides:
“(5) A licence must not be issued to a person who:
(a) ……..
(b) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or
(c) ……
(d) …..”
19 Clause 5(a) of the Firearms Regulations, so far as is relevant, prescribes the following offences for the purpose of s.11(5)(b):
(b) “An offence relating to the possession or use of a firearm or any other weapon, committed under:
(i) the law of any Australian jurisdiction
(ii) …”
20 Mr Polyzogopoulos’ conviction for possessing a prohibited weapon is an offence to which cl 5(a) of the Firearms Regulations apply and hence, a ground for revoking his firearms licence.

21 S.24(2)(b)(ii) provides that a licence may be revoked where the licensee has contravened a provision of the Act regardless of whether he has been convicted in respect of that contravention. Mr Polyzogopoulos’ finding of guilt in respect of failing to keep his firearm in a safe place comes within this section.

22 S.24(2)(b)(iii) provides that a licence may be revoked for contravening any condition of a licence. S. 19(2)(a) provides that a condition of a licence is that the licensee must comply with the safe keeping and storage requirements under the Act. These are contained in s.40(1) of the Act and provide (subject to obtaining the Commissioner’s consent to alternative storage):

“(1) The holder of a Category A or Category B licence must comply with the following requirements in respect of any firearm to which the licence applies:
(a) when any such firearm is not actually being used or carried, it must be stored in a locked receptacle of a type approved by the Commissioner and that is constructed of hard wood or steel and nor easily penetrable,
(b) if such a receptacle weighs less than 150 kilograms when empty, it must be fixed in order to prevent its easy removal,
(c) the locks of such a receptacle must be of solid metal and be of a type approved by the Commissioner,
(d) any ammunition for the firearm must be stored in a locked container of a type approved by the Commissioner and that is kept separate from the receptacle containing any such firearm,
(e) such other requirements relating to security and safe storage as may be prescribed by the regulations.
23 In this case, Mr Polyzogopoulos failed to store his firearm and his ammunition as required, which amounted to contraventions of a condition of his licence. These conditions, in my opinion, being fundamental conditions of any licence when having regard to the objectives of the Act (in particular, s.3(2)(e)) and its structure.

Security Industry Act

24 The relevant provisions of the Security Industry Act, 1997 (“ Security Act ”) are referred to in paragraph 5 of these my reasons for decision. In so far as s.26(1)(a) of the Security Act relates to convictions for firearm offences, s.16(1) of that Act provides:
“16(1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the Applicant:
(a) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales Law or
(b) has, within the period of 5 years before the application for the licence was made, been found guilty (but with no conviction being recorded) by a Court in New South Wales or elsewhere of an offence prescribed by the regulations whether or not the offence is an offence under New South Wales law, …)”.
25 Clause 11 of the Security Regulations , so far as is relevant, prescribes the following offences for the purposes of s.16 of the Act:
(a) Offences relating to fire arms or weapons. An offence relating the possession or use of a firearm, or any other weapon, committed under:
(i) the law of any Australian jurisdiction, or
(ii) …
and being an offence that would disqualify the Applicant concerned from holding a licence under the Firearms Act, 1996 ”.

26 Accordingly, under s.16(1) of the Security Act , Mr Polyzogopoulos’ conviction and finding of guilt would require the Commissioner to refuse an application for a security licence, had Mr Polyzogopoulos been applying for such a licence at this time. However, as was conceded, when considering revocation of an existing licence the Commissioner has a discretion whether to revoke the security licence under s.26(1)(a) of the Act.

Reasons and Decision

27 In my opinion, in light of Mr Polyzogopoulos’ admission that he was at all times fully aware of the requirements to keep his firearm and ammunition stored in a “locked receptacle” together with the express objectives of the Act about safe storage, the contraventions by Mr Polyzogopoulos are not merely technical. The legislative requirements in this regard are clearly described and the fact that the firearm and the ammunition are located in a house which is secure from outside intrusion does not mitigate the nature of the contraventions.

28 These contraventions together with the conviction for possessing a prohibited weapon, which was left under a bed, in my opinion, are sufficient to support the Commissioner’s decision to revoke Mr Polyzogopoulos’ firearms licence as being the correct and preferred decision.

Security Licence

29 Mr Polyzogopoulos’ failure to store his firearm safely and securely does not necessarily reflect adversely on his ability to perform the duties of a security officer. The objects of this Act differ from those of the Firearms Act and under the security licence issued to Mr Polyzogopoulos he is not required to carry firearms as part of his security duties.

30 The same principles apply in respect of Mr Polyzogopoulos’ conviction for possessing a prohibited weapon, which was discovered by chance and the evidence is that Mr Polyzogopoulos did not realise that possession of such was prohibited in New South Wales.

31 In my opinion, having regard to the references produced into evidence by Mr Polyzogopoulos from his employers and the concession of Mr Spartalis that Mr Polyzogopoulos was otherwise of good character, I am of the view that Mr Polyzogopoulos is a fit and proper person to continue to hold a Class 1A, 1B and 1C security licence and it would not be contrary of the public interest for him to do so. As explained earlier in these my reasons for decision, Mr Polyzogopoulos is aware that when his security licence expires, the Commissioner may be required to refuse to grant him a licence because of the terms of s.11(5)(b) of the Security Act.

Orders

(1) The Commissioner’s decision to revoke the Category A and B firearms licence in the name of Mr Polyzogopoulos is affirmed.

(2) The Commissioner’s decision to revoke the Class 1A, 1B and 1C security licence in the name of Mr Polyzogopoulos is set aside.