Price v Commissioner of Police, New South Wales Police Force

[2023] NSWCATAD 239

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Price v Commissioner of Police, New South Wales Police Force [2023] NSWCATAD 239

Hearing dates:

16 August 2023

Date of orders:

30 August 2023

Decision date:

30 August 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Emeritus Prof G D Walker, Senior Member

Decision:

1.   Decision under review affirmed.

2. Pursuant to s 64(1)(c) of the CAT Act, publication of exhibit R2, pages 53 to 56 of exhibit R1 and the paragraphs of these reasons marked “[Not for publication]” is prohibited.

Catchwords:

LICENSING – firearms licensing – licence refusal – offences – self-harm ideation – mental health.

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Firearms Act 1996 (NSW)

Mental Health Act 2007 (NSW)

Cases Cited:

Briginshaw v Briginshaw (1938) 60 CLR 316;

Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42;

Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADT AP 16;

Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50;

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

Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218;

Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117;

Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368;

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

McDonald v Director-General, Social Security [1984] FCA 57, (1984) 1 FCR 354;

Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10;

Sterjovski v Director-General, Department of Transport [2002] NSWADT 10;

Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110.

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Philip W Price (Applicant)
Commissioner of Police, New South Wales Police Force (Respondent)

Representation:

Solicitors:
Mainstone Lawyers (Applicant)
Norton Rose Fulbright (Respondent)

File Number(s):

2023/00125550

Publication restriction:

Pursuant to s 64(1)(c) of the CAT Act, publication of exhibit R2, pages 53 to 56 of exhibit R1 and the paragraphs of these reasons marked “[Not for publication]” is prohibited

reasons for decision

1. The applicant Mr Philip William Price applied to this tribunal on 19 April 2023 for review of a decision by the respondent Commissioner to refuse his renewal application for a category AB firearms licence.

2. The original decision had been taken on 20 December 2022 (exhibit R1, pp 36 – 37) on public interest grounds, as he had experienced suicidal ideation and had undergone in-patient psychiatric treatment, as well as other periods of treatment by mental health professionals.

3. The applicant sought an internal review of the refusal decision, which on 31 March 2023 affirmed the rejection of his category AB licence reapplication in light of his mental health history, certain Firearms Act offences in 2007, a self-harm attempt and the providing of false information in his licence application and reapplications (id., 42 – 43). The applicant applied for review in this tribunal on 19 April 2023 and the matter came on for hearing on 16 August 2023.

Applicable legislation

4. Section 11(4)(b) of the Firearms Act provides that “a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuing and responsible control over firearms because of:…..(b) any previous attempt by the applicant to commit suicide or cause a self-inflicted injury”.

5. Section 11(7) of the Firearms Act provides that “Despite any other provision of this section, 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 issue in the present application is thus whether the issuing of a firearms licence to the applicant would be contrary to the public interest.

The evidence

6. At the beginning of the hearing non-publication orders under s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (CAT Act) were made in respect of pp 53 to 56 of exhibit R1 (a COPS report arising when the applicant was a minor) and the whole of exhibit R2, which consists of medical records obtained under summons. That meant that passages in these reasons discussing that material, in descriptions of cross-examination or other contexts, should not be published in the open version of these reasons. The relevant paragraphs are marked “[Not for publication]”. The hearing was open, and the parties will have full access to the complete text of these reasons.

7. The respondent adduced no oral evidence but instead relied on the documentary material, including the s 58 documents (exhibit R1) and 202 pages of records produced on summons (exhibit R2).

Mr Philip Price (applicant)

8. The applicant adopted his written statement dated 28 June 2023 in which he pointed out that he had held a licence and owned a firearm without incident for 7 years. He had no record of violence, and on the contrary had a record of putting himself at risk to protect loved ones and the community. The review decision was based on a small number of negative interactions with police over a decade ago, and only one of those interactions led to a criminal charge, 16 years ago. At that time, and still today, he admitted guilt and was remorseful in respect of those offences.

9. The most recent negative interaction was 12 years ago. He did not hide that he had a period of delinquency as a young adult, the majority of which he would attribute to trauma from his childhood and associating with a negative group of individuals. He had had only one mental health crisis in his life, and that was 15 years ago, a decision that he immediately regretted at the time, as evidenced in the COPS entries by his calling for help and that he still regrets attempting to take his own life to this day.

10. The crisis was brought about by an unfortunate childhood in which he was subject to significant long-term family violence, physical, and emotional abuse by his mother’s ex-partner, and sexual abuse by other persons that he associated with. That trauma stayed with him and was untreated for several years. It was not until university that his natural intelligence and skills were shown not to be enough to get him through the rigours of university, and coupled with his dyslexia and the latent trauma and pain and the breakdown of a relationship, on that fateful night he made an horrifically stupid decision.

11. None of the scars he bears from childhood have made him a risk to himself or to the public. On the contrary, they had enabled him to be left with a unique set of skills that he has turned towards continuously helping the community. He did self-admit himself for mental health concerns for one night at Penrith Hospital. That was simply because he now knew the warning signs that he might not be coping, and took the measures to protect himself. That was over 14 years ago. At that time he did not have suicidal ideation, but did identify that if he was left to his own devices it was a possibility. He has not had any intention or inclination to end his life since the original incident in 2008. If he had, he would have followed the evidenced behaviour and sought help.

12. In the last three years he had experienced considerable stressful life events, being:

• the Black Summer bushfires,

• his long-time partner and love of his life was diagnosed with cervical cancer and had to undergo major surgery,

• the COVID – 19 pandemic,

• in his employment, where past staff had significant workplace behaviour problems that he had to manage. That included his team going through a period of loss of staff at one point functioning only 50 percent of its capacity. The Council’s annual reports acknowledged his team was always successful at meeting its targets.

13. Any one of those significant events could have caused him to have a mental health crisis. The fact was that they did not, and at no time did he have any suicidal thoughts or intentions. For a short period he did have higher than normal anxiety (the depression mentioned in the psychological report was in fact linked to PTSD symptoms) and he sought treatment for it and it was rectified within a month. He had continued to see his treating psychologist for his own improvement as a person, partner and citizen at considerable expense to himself.

14. His seeking of continued treatment from Dr Bollinger PhD was directly related to his wanting to learn how to better communicate with his partner as well as being able to trust and let her in past his defences barrier. His childhood had resulted in his having emotional barriers in place. He envisaged making a life with his partner and to do so he identified that he needed to improve in areas to be a better partner for her.

15. Now, and before his treatment with Dr Bollinger, he had considerable coping methods and normal support networks in place, including daily meditation, regular gym attendance, hobbies such as hiking and macro photography, his research on Australian peacock spiders, healthy social life and other practices. He has no ongoing mental health issues. He is seeing a psychologist for the betterment of himself, not ongoing mental health concerns. He has disclosed all information that came to memory, but did not have access to his COPS record.

16. He also did not know this was a pre-requisite for a firearm application or in the mental health assessment. However, all mental health professionals had been made privy to his entire record, being the s 58 bundle provided, and their opinion stands the same as was originally submitted, that he is not at risk. Concerning his incorrect answers to the mental health question for his first two applications, he has had dyslexia all his life which has caused him considerable learning difficulties and embarrassment throughout his life.

17. On receiving the internal review decision which stated that he had knowingly lied, he immediately suffered considerable embarrassment and distress. He could not understand how he could have answered those questions incorrectly. He knew he had not lied or attempted to hide his past from the respondent as he was well aware of the fact that police attended his suicide attempt and there was significant documentation of it by the police. He was, and still is, under the assumption as part of the review process that extensive background checks such as police and criminal history checks are undertaken on all licence applications. Consequently, as a very honest and logical person, he already knew the police were aware of his suicide attempt in 2008. To this day he is significantly embarrassed by that mistake.

18. It was the next day in meeting his father that he immediately explained to him how his dyslexia would have made him interpret the double question to only mean the last 12 months. It was a lightbulb moment of clarity that was what his brain had done. His history of dyslexia is well evidenced by the multiple academic integration plans in university, the current adult diagnosis and the large majority of his character references being aware of it for a long time. One can see that as soon as the question was separated into two questions, he answered correctly.

19. He did not knowingly make a false or misleading statement, believing that he was filling in the forms 100 percent correctly. He does, however, understand now that such was not the case and was apologetic and embarrassed by his mistake. He had always treated the privilege of owning a firearm as one of the highest achievements and positive comments on his character.

20. His employment as the Biosecurity Weeds Coordinator for Hawkesbury River County Council requires him to be an authorized officer under the Biosecurity Act 2015, which involves extensive powers. He was also an authorized officer in his role as a biosecurity officer with Local Lands Services. He has been an authorized officer now for over 5 years. Authorized officers have the power to enter everywhere on premises without a warrant, except for the direct residential premises for which a warrant is needed or permission is granted. Most recently, because of a prohibited matter outbreak, he had also been responsible for overseeing and issuing over 68 highly prescriptive biosecurity directions and accepting biosecurity undertakings from private and public landholders. He has had no incidents or complaints lodged against him in that role.

21. His previous role as a biosecurity officer with Local Lands Services stated that a firearms licence or the ability to obtain one was an essential criterion. That stands true for the majority of biosecurity jobs, including the role he had to withdraw from for New South Wales National Parks and Wildlife Services.

22. In relation to the COPS entry that he had made a bomb threat at his former high school, he believed the witness statement had identified the wrong student. He had no recollection of any behavioural issues, especially throwing a chair in a classroom during his year 12 time. Further, there was no discussion of punishment for that alleged incident involving him, after the talk with his father and the police. It was a significant incident in a schoolroom and if he was the correct student he would have faced repercussions for his alleged behaviour. Further, he was not seeing a school counsellor and did not like them because of past negative interactions based on his questioning of his religious beliefs during his school years.

23. His recollection of the events is that he attended school on 15 March 2006 and was immediately asked to report to the principal’s office, when he was placed in a room by himself, having his bag and all possessions taken from him by staff. After a couple of hours his father arrived and they were escorted to the office of the principal, Mr Wayne Park, at which time two police officers were present. They asked his father and him the questions as stated in the COPS entry I26693919, with no explanation whatsoever. Once they answered, that was the end of the issue.

24. The school and the police refused to explain why he had been asked those questions and detained in that way for an extended period. It was not until he received the s 58 bundle (17 years after the event) that he had some closure as to why he was ever questioned by the police for making a bomb threat. He had never made, or even entertained the idea of making, a bomb threat on his school.

25. Regarding the COPS entry about the toy gun in his car, he did take and still takes full responsibility for having it in his car for a prank on a friend, as admitted in the police statement hours after the event. He takes full responsibility and understands that the toy gun was classified as a replica firearm. He had absolutely no intention of using it in any criminal activity and had never done so. He was gainfully employed at the time, but was unfortunately associating with an idiotic group of friends. After that event, he quickly broke ties with that group and has not associated with them since then. Of the remaining materials, they were separate from the toy gun and specifically used for his work as a stable hand at Sugarloaf Stables. He believed a letter from his employer at the time was submitted to that effect in his court appearance. He pleaded guilty, taking full responsibility for his actions and received a s 10 non-recording of a conviction and payment of court fees.

26. As regards the recording of his attempt to take his own life in Custody Management Records, he had only attempted suicide once in his life and that was the university attempt. He was, however, open about having mental health issues at that time, which may have prompted the officer to record it as such.

27. Regarding the COPS event report E45843835, both the person reporting and himself, who was an ex-partner at the time, lived on the same university campus and were undertaking the same university degree, and consequently the same units of learning. He was shocked and concerned, not only by the late telephone call from the police officer, but the allegations made against him. As stated to the investigating officer but not recorded in their COPS entry, Ms [surname] did not have a driving license and could not as stated in her complaint be able to drive back to campus. He did not have any intention of stalking Sara [surname]. Their breakup had been more than amicable. He has not had contact with her since that event.

28. He has a genuine need for a firearms licence, not only for recreational purposes, but to assist his mother with vermin control on her property. He has also been restricted in jobs that he would like to apply for in his chosen field, as they have required the successful applicant to either hold a firearms licence or be able to apply for one.

29. In oral evidence at the hearing the applicant pointed out that he had received the Stephenson Award for outstanding contribution to planning and coordinating weed management in his capacity as biosecurity weeds coordinator for Hawkesbury River County Council (exhibit A6).

30. Cross-examined by Ms Sims, he acknowledged that he had stated recreational shooting and vermin control as his reason in all his applications because of the need for vermin control on his mother’s property. He had never lived there, but visited her at least once a month, and she was in a wheelchair. The property was affected by a large fox and deer population. He would also like to have a licence in order to apply for the National Parks position.

31. [NOT FOR PUBLICATION]

32. [NOT FOR PUBLICATION]

33. [NOT FOR PUBLICATION]

34. [NOT FOR PUBLICATION]

35. [NOT FOR PUBLICATION]

36. [NOT FOR PUBLICATION]

37. [NOT FOR PUBLICATION]

38. [NOT FOR PUBLICATION]

39. [NOT FOR PUBLICATION]

40. [NOT FOR PUBLICATION]

41. He is currently seeing Mr Swale, but not Dr Gibbins – he did have a referral to her but had not seen her. He said he was the primary author of the case reports about weed identification and control and other matters (part exhibit A6). He said that his last instance of suicidal ideation had been in 2013 – 2014 following the death of his grandmother. It had given him a wake-up call and had taken responsibility for helping his mother.

42. He is currently in a five-year healthy relationship and wants to strengthen it. He is now in a good place and they are planning to buy a house. He has only three sessions on his mental health plan remaining, the program having been drawn out because of the COVID restrictions. His next session will relate to his relationship with his mother. His failure to give full information in his licence applications had been due to his dyslexia and misunderstanding the printed questions. He would not present any risk to the public if he had firearms; he had, after all, owned guns at the time of the relationship breakup referred to earlier.

43. The applicant tendered 12 recent character references, the contents of which are summarized below.

Applicant’s submissions

44. The applicant relied on written submissions dated 13 August 2023 (exhibit A7) which contended that the mental health issues of significance occurred many years ago, as was documented in his medical records. It was also significant that the reports of Dr de Silva (exhibit A2, pp 62, 65 and 69) stated that in each of her consultations in 2020 and 2021 there was no suicidal or homicidal ideation.

45. It is clear that the applicant continues to seek help as a preventive method regarding any mental health issues that he has. He should not be criticized for doing that but should actually be given credit for continuing to seek assistance to maintain his mental health. That would give the tribunal confidence in regard to his current mental health and his mental health in the future.

44. The respondent placed significant weight on the answering of questions in his firearms licence applications, especially as regards answering “No” to a question pertaining to his mental health in his first two applications and answering “Yes” in his third. As indicated, he has suffered from dyslexia all his life and it was for those reasons that the questions were answered in the way that they were in the first two applications, as opposed to the third application when the questions were split. The report of Miss Hayek on that issue provided clarification and expert evidence as to how he would have misinterpreted the questions in the application is made.

45. It would not be logical for him to answer the question “No” in his first two applications and then “Yes” in the third, with knowledge of his previous history. It was clear, once the question was simplified, and given his dyslexia, that he was able to more properly understand it. It was done without any intention to mislead the Firearms Registry

46. The tribunal would be further satisfied that this was the position, noting the Academic Integration Plan that he undertook with the University of Western Sydney (UWS) to complete his studies. He is a highly intelligent man who holds an extremely responsible position in the workplace. He has indicated in his evidence that not only is he seeking a licence for recreational purposes, but also that not having a licence has restricted him in being able to apply for work positions. He has a genuine reason for a licence and the tribunal should reject the respondent’s submission that he wishes to possess firearms for the purpose of harming animals in a cruel manner.

47. Given his now stable mental health, his maturity and the other reasons provided, there is virtually no risk to the public if he were to be granted a firearms licence.

48. In oral submissions at the hearing, Mr Mainstone adopted the written submissions and noted that the respondent’s central concern was the applicant’s mental health. His most serious issues were in the past, up to 2008, but since then the passage of time and the treatment he had received had benefited him, as the reports showed. He is an intelligent and honest man and many of his answers in cross-examination candidly conceded points to the respondent. He explained that he had lied on a number of occasions in order to get help. Dr de Silva’s notes on 11 January 2021 showed that he had no suicidal or homicidal ideation (exhibit R2, pp 65 – 69).

49. He holds a responsible position and is in a stable relationship. He has received high honours for his academic work and is in a really good place. He has been on a mental health plan for the purpose of self-betterment and to help him to cope. He seeks to enhance his career by obtaining a firearms licence.

Consideration

Approach

52. Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal’s role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner’s decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.

53. The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the CAT Act (s 30) and the Firearms Act, including the Commissioner’s refusal of a licence or permit: s 75(1)(c). An internal review was applied for and duly determined (ADR Act s 55(3)). The tribunal is to make its own decision and there is no presumption that the Commissioner’s decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.

54. Clear guidance as to how the act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3) states that a licence must not be issued unless the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace. Section 11(4)(c) also provides 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 intemperate habits or being of unsound mind.

55. The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] – [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] – [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] – [12]. They do, however, provide guidance for the tribunal’s exercise of jurisdiction.

56. The respondent did not submit that the applicant is not a fit and proper person to hold a firearms licence, but argued for licence refusal on the ground that it is not in the public interest for the applicant to hold a licence, within the meaning of s 11 (7).

Public interest

57. The “public interest” factor allows a consideration of issues going beyond the character of the applicant to be taken into account. They may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16.

58. The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety. The tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The applicant’s personal interest in retaining his licence is subordinate to the public interest in ensuring public safety.

59. As the Court of Appeal observed in Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368, [1], the power to grant an application under the Firearms Act places significant emphasis upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant. Similarly, in Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 the tribunal stressed that public safety is to be given paramount consideration.

60. Tribunal decisions have pointed out that the question of potential risk to public safety is not to be applied in an absolute manner, 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] 66].

61. Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that “In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration”. Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD, [74].

62. The respondent did not contend that the applicant was not a fit and proper person to hold a firearms licence but relied on a number of matters relevant to the public interest. The first was his record on the Computerised Operational Policing System (COPS) database. The first incident occurred when the applicant was a minor and is therefore not for publication.

COPS record

63. [NOT FOR PUBLICATION]

64. On 10 August 2007 police searching his vehicle located a replica handgun of which the applicant admitted he was the owner. He was charged with the offence of possessing or using a “prohibited weapon”. He said it was a toy pistol that he had been intending to use for a prank with some friends. The charge was dismissed without conviction under s 10. On 10 August 2007, while in police custody in respect of that charge, he informed police that he had attempted to take his life in 2006 using sleeping pills (exhibit R1, pp 61 – 62).

65. COPS event report E33836409 records that on 20 June 2008 after consuming five glasses of beer he ingested up to 12 sleeping tablets before contacting a friend and advising him that he was suicidal. Police attended at the premises and he was conveyed by ambulance to Nepean Hospital for psychiatric assessment (id., 43). The other COPS entries described incidents in which he had been a victim, including an instance of harassment by a female fellow-student following the breakup of a 5-year relationship.

Incorrect answer to personal history question

66. When submitting a firearms licence application on 10 March 2015, he answered “No” to the personal history question “Have you ever attempted suicide or self-harm, or in the past 12 months been referred or treated for alcoholism, drug dependence or a mental or nervous disorder or illness?” On 26 April 2017 in a licence application he again answered “No” to that question. But on 10 May 2022 in a licence reapplication he answered “Yes” to the question “have you ever attempted suicide or self-harm?” and gave details of the attempt in 2008, but did not provide the information contained in police custody records from 2007 (id., 43).

67. At first, following the internal review decision, he could not understand how he could have answered the question wrongly when he had no intention to deceive, but later concluded that it resulted from a misinterpretation caused by the dyslexia from which he has suffered all his life (exhibit A1, paras 17 – 19). The psychologist’s report by Miss Carol Hayek dated 23 June 2023 (exhibit A3) agreed, explaining all that when dyslexics read, they often rely on their overall understanding of the context and meaning of the text, looking for contextual clues by relying on the surrounding clues rather than getting caught up in individual words or sentences. Being dyslexic, the applicant did not correctly comprehend the question and used compensatory strategies, reading the question as referring to the last 12 months. The applicant’s parents both took the same view.

Questionable stated reason for obtaining a licence

68. In his first application, the applicant gave his reason for obtaining a firearms licence as “Recreational Hunting/Vermin Control”, having permission from his mother, Mrs Margaret Price, to hunt rabbits, foxes, wild goats and wild boar on her rural property. He affirmed that reason in both the second and third licence applications. The summonsed material in exhibit R2 raises questions about the genuineness of that reason, however.

69. [NOT FOR PUBLICATION]

Mental health and risk

70. The central concern of this matter is a question of the applicant’s mental health and whether, and if so to what extent, it represents a safety risk. The applicant’s evidence was that he has had only one suicide attempt, in 2008, which was brought about by the rigours of university work, coupled with dyslexia, latent childhood trauma and relationship breakdown. He states that any later presentation was preventive in nature and could not be characterized as a suicide attempt. He says he has had no intention or inclination to self-harm since 2008 and has in recent years dealt with considerable life challenges effectively. He states that he seeks ongoing mental health treatment for self-betterment and has no ongoing mental health issues.

71. Dr Bollinger’s reports provide some support for that position, although she cautions that they are based on discussions in the course of a therapeutic relationship and do not “have the objective rigour of a forensic assessment”. She notes, however, that while at university he overdosed on medication and alcohol and was admitted to the psychiatric wing of the hospital for 6 to 8 weeks, when his psychologist at the time, Mr Sawle, arranged his release. He continued to see the psychologist for another 1½ years after that. Some years later, the applicant recalled that he had self-admitted to hospital for suicidal ideation, but said that as a result of his proactive approach, he had not had any further suicide attempts. He denied any suicidal thoughts with intent or plan for at least five years (exhibit R1, p 19).

72. [NOT FOR PUBLICATION]

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83. [NOT FOR PUBLICATION]

The references

84. The applicant tendered 12 recent character references, most from persons who have received and read the s 58 documents (exhibit R1). They have not, of course, had access to the health records produced on summons (exhibit R2). Mr Naveed Shah has known the applicant since about February 2023, and is aware of the issues surrounding his past, including a suicide attempt. He believes Philip is of sound mind and conscientious awareness and is at heart a good human being. He believes the grounds for licence refusal occurred a long time ago and he no longer exhibits those characteristics.

85. Dr Adrian Renshaw, senior lecturer at UWS, was aware that the applicant had been provided with an academic integration plan pursuant to university policies in relation to the Disability Discrimination Act 1992. He later found out that it was in place due in part to his dyslexia. Philip stood out because of his passion and enthusiasm for and about the natural world. Dr Renshaw is also aware that Philip struggled with some personal issues, which sometimes led to conflicts during his undergrad years. However, he never witnessed any such conflicts and his dealings with him were always respectful and courteous. He has also worked with the applicant in his role as biosecurity officer with Hawkesbury River County Council and their dealings have always been professional, friendly and respectful.

86. One of the references is from Mrs Margaret Price, the applicant’s mother, who understood how his dyslexia would have caused him incorrectly to answer the question on the application form. The wording was changed in 2022 and it is now much easier to comprehend. Philip had only attempted suicidal once, due to dyslexia, and unresolved childhood trauma, as well as the pressure of being a first-year university student. He quickly realized that he needed help and successfully completed a mental health program. He finished his university degree with honours.

87. Ms Katherine Clare is a colleague and friend of the applicant who has known him since October 2019. They have formed a friendship based on an interest in the environment, their shared values and commitment to positively contributing to the local community. She believes he is a person of good character who contributes positively to the people and community around him. He is a valued member of the community, volunteering his time with Rural Fire Service and Landcare. She is aware that he has dyslexia and has seen the impact it has on his writing. He often asked someone to proof-read important documents to correct errors due to his dyslexia. She is aware of his past actions as a youth and they seem out of character for him and do not reflect what she knows of his actions and character.

88. Dr James Macnamara says the applicant is a valued and upstanding member of the community, as demonstrated through his volunteer work with the Rural Fire Service, where he was awarded a national emergency medal for his services during the black summer bushfires. He had struggled with mental health in the past, which did result in a suicide attempt and one self-admission over 15 years ago. He was diagnosed with PTSD stemming from his childhood trauma. The diagnosis and regular psychological consultation have had a positive influence on his well-being and outlook. He had somewhat troubled youth but has had no negative interactions with law enforcement in over 10 years. He does not believe the applicant would be a danger to himself or the public if granted a licence, having seen at first hand his safety rigour around guns.

89. Ms Natalie James, the Weed Control Coordinator at Hawkesbury River County Council, has known the applicant for 3½ years of working together. They often work closely on matters relating to weeds and often rely on and support each other in work-related activities. He is very competent in all aspects of this job, proficient in training other employees, and a reliable and trustworthy man. She believes Philip to be an outstanding member of the community, both in the workplace dealing with private landholders and outside the workplace as a volunteer in the RFS.

90. Dr Scott Nacko, a plant protection technician with the United States Department of Agriculture, has been a good friend of Philip since meeting him at a fitness centre in 2019. He demonstrates an outstanding level of moral character, integrity and truthfulness. The conduct in the s 58 bundle is out of character. He maintains integrity and goes out of his way to help others and has a passion for education and biosecurity. He serves the community through volunteering in the RFS, conducting independent scientific research, removing invasive plant species from the environment, assisting with bush regeneration and advocating mental health awareness. He is an upstanding member of the community who maintains a strong and stable relationships with his friends, partner and family. During the years he has known the applicant he can attest to his sound mental health.

91. Mr John Ashton, captain of the Yarramundi Rural Fire Brigade, observes that the applicant has shown dedication to the brigade and community at large. He has shown leadership qualities that have seen him being nominated and completing some of the RFS crew leader training. He regards Philip as an intelligent, responsible and kind-hearted person who would help others without question. Though he might have a past that is not “desirable”, he has learned from it, move down and always strives to improve himself he has a positive view on life and what lies ahead.

92. The applicant’s father, Mr Kevin Price, makes similar points to those of his mother in relation to the applicant’s dyslexia and his successful treatment of his mental state, enabling him to finish university, earning his degree with honours. The applicant’s partner Ms Emily Lukavic in her reference speaks highly of his integrity, sense of responsibility and high reputation. He acknowledges when he makes mistakes and constantly tries to better himself as a person, and always follows that focus of how he lives his life. He has a passion for life and the joys in what it has to offer which she has witnessed from spending time with him. The negative behaviours in s 58 materials are out of character for the person she knows him to be.

93. Mr Aidan Dunn operates a plumbing business and met the applicant at an RFS meeting, and they have become friends outside the service. They have together carried out vermin control with permission from local landowners, and he has always seen Philip use his firearm in a safe and lawful manner. His prior criminal and traffic matters are out of character and perhaps outdated in relation to his current character and personality. In the time he has known Philip, he has never doubted his ability to conduct himself in a sensible manner. He always seems to have his life in order and besides the personal information on past events shared with him or given in the bundle, he had never suspected him to be mentally ill or unstable.

84. Mr Daniel Smith is a driver for a trucking company who attended the same high school as the applicant. He was aware of the applicant’s troubled childhood containing abuse, physical, emotional and sexual. Both his parents having disabilities, having to experience that type of childhood trauma would not be easy to deal with. He is very proud of how far Philip has come in all aspects of his life, whether physically, financially or mentally, he and he has exceeded expectations. He was the best man at Mr Smith’s wedding and he would trust him with his children, as he is a very honest and upstanding man.

Evaluation

95. The applicant is a man aged 35 who works for a local government body in the control of noxious vegetation. Despite a lifelong problem of dyslexia, he completed two university courses and is a recipient of the Stevenson Award, which is described as being “For outstanding contribution to planning and coordinating weed management programs in New South Wales”. He seeks to renew his firearms licence as it will make him eligible for promotion and for appointment to positions where a licence is necessary or desirable. He held a firearms licence for 7 years with no contraventions or adverse reports. He has no history of violence towards others and no non-traffic offences other than a s 10 dismissal on 17 October 2007 on the charge of possessing an imitation pistol, which he said was a toy intended to be used in a prank with friends.

96. Also in his COPS record was the incident on 2 March 2006 in which he said in an interview with a school counsellor following a dispute with another pupil that he intended to blow up the school. He later told police that he had no explosives at home, did not know how to make a bomb and had no contacts who would help him to do so. In light of that information police decided to take no further action.

97. Neither of the above incidents involved any actual violence and as they are now 17 years in the past they do not merit substantial weight on the issue of public interest. The other COPS reports describe events in which the applicant was a victim, not the putative perpetrator. The most significant point for present purposes is that while in custody on the “prohibited weapon” charge he told police that he had attempted suicide by an overdose of pills in 2006 (exhibit R1, pp 61 – 62).

98. The next ground relied on in support of licence refusal was that of giving incorrect answers in his firearms licence applications. In his 10 March 2015 application he answered “No” to the question whether he had ever attempted suicide or self-harm”, and again on 26 April 2017 gave the same incorrect answer. On the other hand, in his 10 May 22 reapplication he answered “Yes” to that question, which was correct.

99. He denies any intent to deceive and contends that the misstatements in March 2015 and April 2017 resulted from dyslexia, from which he has suffered all his life. His parents took the same view. In her detailed report on this matter dated 23 June 2023 (exhibit A3), Miss Carol Hayek, a clinical psychologist, reached that conclusion also. “Mr Price,” she wrote, “who presents with dyslexia, is very likely to have read the double-barrelled question on the previous applications incorrectly by omitting the “or”. The fact that he recorded “yes” when the question was split in the recent application supports this”. In my view the two misstatements have been adequately explained as unintentional and the ground can be disregarded.

100. The respondent then challenged the applicant’s stated reason for having a licence, which was recreational hunting/vermin control, with permission from his mother, Mrs Margaret Price, to hunt rabbits, foxes, wild goats and wild boar on her rural property near Goulburn. The summonsed medical records suggest another reason, however.

101. [NOT FOR PUBLICATION]

102. The central issue in this application is whether the applicant’s history of mental health problems and his past history of suicide attempts and ideation mean that today, and in the foreseeable future, his possession of firearms would create a real and appreciable risk to public safety. Dr Bollinger’s 2022 and 2023 reports, while drawing attention to ongoing anger issues, paint a relatively reassuring picture of the applicant’s present state and prognosis. As she pointed out, however, her assessments, including those about his care in handling firearms, are based on discussions in the course of “an enduring therapeutic relationship and [do] not have the objective rigour of a forensic assessment”.

103. [NOT FOR PUBLICATION]

104. [NOT FOR PUBLICATION]

105. [NOT FOR PUBLICATION]

106. [NOT FOR PUBLICATION]

107. The applicant holds a responsible position in his career in environmental management, specifically weed control, and has received high honours for his performance in that field. He has carved out a successful life despite suffering from dyslexia, which presented great challenges in pursuing his university studies, which ultimately culminated in his earning two degrees. He is actively involved in community support activities, such as the Rural Fire Service, and is held in high esteem by other members and by other people who have come to know him. The applicant has a history of actively seeking professional help when he feels his problems are becoming more acute, which is to his credit and also helps to attenuate somewhat the risk to public safety He believes that he needs a firearms licence in order to progress further in his career. He is in a stable relationship and has been for five years.

108. People can and do recover from mental health problems and can go on to lead blameless and constructive lives. But proper scrutiny is required, especially when the more serious kind of disorder is involved. The respondent tendered a copy of an article describing the case of one Wayne Smith at Yamba in June 2023 whose licence had been suspended on mental health grounds but was later reinstated in December 2022. Six months later Smith fatally shot his 15 year-old son and then himself (part exhibit R3). As a result of the government ordered a review of “the current processes and procedures related to issuing a firearms licence where mental health is a factor”.

109. The respondent stressed that it was not sought in any way to equate the applicant’s condition to that of Smith, but simply to show the grave consequences that can flow from issuing licenses to persons with unresolved psychiatric problems. In this case there is evidence of improvement in the applicant’s condition, but the mental health professional conducting the most recent assessments had not been briefed with the major part of the medical evidence relevant to his case.

110. A recent independent mental health overview taking account of all the evidence would have been helpful, and there is no such assessment in the evidence before the tribunal. Given the serious nature of some of the episodes and conditions from which the applicant has suffered, in those circumstances the tribunal cannot be satisfied that issuing a licence to the applicant would not entail a real and appreciable risk to public safety (including his own), as that concept was expounded in Webb, and that it would consequently not be in the public interest to issue a firearms licence to him, and I so find. The decision under review must be affirmed.

Orders

1. Decision under review affirmed.

2. Pursuant to s 64(1)(c) of the CAT Act, the publication of exhibit R2, pages 53 to 56 of exhibit R1 and the paragraphs in these reasons marked “[Not for publication]” is prohibited.

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: 30 August 2023