Robson v Commissioner of Police

[2020] NSWCATAD 72

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Robson v Commissioner of Police [2020] NSWCATAD 72
Hearing dates:	30 January 2020
Date of orders:	03 March 2020
Decision date:	03 March 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	(1)   The decision by the Commissioner of Police to revoke the Applicant’s Category AB firearms licence is set aside.
Catchwords:	Administrative Law – Firearms licence – revocation –domestic circumstances – public interest – whether real and appreciable safety risk.
Legislation Cited:	Firearms Act 1996 Firearms Regulation 2017 Civil and Administrative Tribunal Act 2013 Administrative Decisions Review Act 1997
Cases Cited:	Kopco v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD Tolley v The Commissioner of Police [2006] NSWADT 149 Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110
Texts Cited:	None cited
Category:	Principal judgment
Parties:	Clare Ann Robson (Applicant) Commissioner of Police (Respondent)
Representation:	Solicitors: Mainstone Lawyers (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	201900288680
Publication restriction:	Nil

Reasons for Decision

Introduction

1. Clare Robson (“the Applicant”) has sought external review of a decision by a delegate of the Commissioner of Police (“the Respondent”) under the Firearms Act 1996 (“the Act”). In August 2019 the Respondent determined to revoke the Applicant's Category AB firearms licence.

2. The application to the Tribunal is made under section 75 of the Act and the Administrative Decisions Review Act 1997 (“the ADR Act”).

3. The Applicant and her husband are primary producers who live on a remote property in the Bourke District of NSW (“the property”). In these reasons I will refer to the Applicant’s husband as “H”. It is not in dispute that the Applicant requires a firearms licence for vermin and feral animal control as well as sourcing food and humanely destroying sick and injured livestock. The Applicant’s licence was issued in January 2019 and was due to expire in March 2023.

4. It is common ground that she is a person of good character. The Respondent also accepts that she is aware of her responsibilities relating to the strict safekeeping requirements of firearms.

5. H takes anti-depressant medication. However, he occasionally has episodes where he becomes very angry and verbally abusive. Consumption of alcohol worsens the situation.

6. The issue in this matter is whether the Applicant should be prevented from holding a firearms licence because of H’s history of mental health issues and alcohol abuse.

7. In January 2019, the Respondent refused to grant H a firearms licence. The refusal was based on information regarding an incident at a hotel in Bacchus Marsh, Victoria in September 2008 (“the Bacchus Marsh incident”). H was reported to have threatened to commit suicide by jumping off a cliff. Police observed him to be very intoxicated, banging his head on the window of his vehicle, and he tried to assault police.

8. The Applicant was contacted in relation to the incident and she attended the police station and spoke with police. She is reported to have informed police that H suffered from depression and that when he mixed alcohol with his anti-depressant medication he often became upset and angry. The Applicant is also reported to have informed police that H had a suicide fantasy of getting into a shootout with police and being shot and killed.

9. There is no suggested that H has ever attempted to commit suicide.

10. H did not seek review of the January 2019 decision to refuse his firearms licence application. As he was unlicensed his firearms were seized. The Applicant subsequently acquired those firearms.

Background to the revocation decision

11. In June 2019 H contacted 000 and indicated that he was experiencing suicidal thoughts. He made no specific threat of self harm. In the call H said "I'm done, I'm on the brink. I don't know why I feel this way." "I've been on the brink of it all day."

12. Police attended the property in response to the 000 call and spoke with H. The Police recorded that H was intoxicated, mostly passive aggressive and, at times, agitated. H gave no initial indications of self harm to Police. He was detained for the purpose of applying for and serving an apprehended domestic violence order (“ADVO”). A provisional AVO was put in place and subsequently confirmed. Whilst at the Police Station, H was upset, at times crying and angry.

13. Arrangements were made for an ambulance crew to assess H. The Ambulance attended to him at Bourke Police Station and he was then transported to hospital.

14. An entry in the Respondent’s Computerised Operational Policing System (“COPS”) database records that H disclosed to ambulance officers that he had written a suicide note prior to contacting 000.

15. The Applicant’s firearms were seized the following day for a cooling off period of 28 days. The AVO was revoked at Bourke Local Court in August 2019.

16. The Applicant subsequently wrote to the Respondent and requested the return of her firearms. She stated that she needed them for primary production purposes, that they were to be stored properly and that she would be the only person to have access to them. In relation to the June 2019 incident she wrote:

On that day my husband phoned 000 as he needed medical help. He had been medicated for depression and had run out of his medication. He began to use alcohol to self-medicate himself leading him to become aggressive and angry which he displayed towards the police and myself. He was intoxicated. For this reason an AVO was put in place and my firearms were seized.

My husband is now doing well on his medication and is continuing to receive help for his depression and I consider him to no longer to be a threat to either myself or police. He also cannot use and has said he will never drink again.

Applicable legislation

17. The Act sets up a scheme to license people to possess and use firearms. One of the underlying principles of that Act is to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage of firearms.

18. The principles and objects of the Act confirm that possession and use of firearms is a privilege that is conditional on public safety.

19. The licensing regime is not about punishment. It is about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with a need to reduce any risks to a minimum.

20. Section 11(4) of the Act 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: (a) the applicant’s way of living or domestic circumstances….”

21. In Tolley v The Commissioner of Police [2006] NSWADT 149 the Administrative Decisions Tribunal stated at paragraphs [30] - [31]:

30   At paragraph 28 of [Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28] the Tribunal continued:

"The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk."

31   Although in that case the consideration for the Tribunal was whether the Applicant themselves would pose any risk to public safety if access to firearms were granted, similar considerations apply in the present case. Given the breadth of the Commissioner’s discretion and the overriding object of public safety there is no basis for differentiating between conduct of the Applicant themselves and conduct of another which may impact on public safety in the context of a firearms licence.

22. In Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at paragraph [32], when considering the question of public safety, I 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. … It is appropriate that any exercise of discretion accord with the principles and objects of the Act”. That approach has been adopted in a number of decisions of this Tribunal: see discussion in Kopco v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 124 at paragraphs [55] – [57].

23. Section 24(2)(a) of the Act states 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”. Section 24(2)(d) authorizes revocation “for any other reason prescribed by the regulations”.

24. Clause 20 of the Firearms Regulation 2017 provides that “The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence”.

25. Section 75 of the Act states:

75 ADMINISTRATIVE REVIEWS BY CIVIL AND ADMINISTRATIVE TRIBUNAL OF CERTAIN DECISIONS

(1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions:

…

(c) the revocation of a licence or permit issued to the person (other than a revocation on the basis that the holder of the licence or permit is subject to a firearms prohibition order or an apprehended violence order)

26. The issue in this case is whether the correct or preferable decision is to revoke the Applicant’s firearms licence by reason of her domestic circumstances or for any other reason.

The evidence

27. The Respondent did not call oral evidence but relies on a statement by Sergeant Nicole Ward. The Respondent also sought to rely on an affidavit by its solicitor, Mr Joshua Dadgar which annexed a significant amount of documentary material that was obtained either under summons or from the Applicant’s solicitor. Mr Dadgar’s affidavit was not admitted into evidence but the annexures are in evidence by agreement between the parties. The Respondent also relies on a bundle of documents provided pursuant to section 58 of the ADR Act.

28. The Applicant relied on her own statements dated 25 November 2019 and 27 January 2020; H’s statements dated 25 November 2019 and 27 January 2020; an 11 September 2019 report by Bourke Drug and Alcohol Counsellor Ms Emma Hargreaves; and a 14 November 2019 expert report by Forensic Psychologist Mr Bradley Jones. The Applicant and H both appeared at the hearing and were cross-examined. Ms Hargreaves and Mr Jones both appeared by telephone and were cross-examined.

The Applicant’s evidence

29. The Applicant’s evidence is that she does not hold any fears of H in any way whatsoever, let alone from firearms. In regard to the AVO the Applicant stated that she agreed with the course suggested by police as she understood that it was a way to get H the help that she thought he needed. She said that she subsequently attended Court and had the AVO revoked as she did not hold any fears for her safety from H and that this is still the case.

30. She has no fear that H would attempt to take her gun safe keys and access her firearms. She provided the following account of their current circumstances:

“I wish to state upon my husband, [H's] release from hospital in Dubbo on 21 June 2019, I put in place an agreement to help prevent any further incidents arising again with [H]. That agreement was that [H] must take his medication as directed at all times. If [H] has any problems regarding his medication, he should not take this matter into his own hands and he must seek help to correct any problems. I also stated to [H] that if he had any anxieties that they too should be addressed properly and seek appropriate counselling if needed. I also stated to [H] that he was never to drink alcohol again. [H] agreed to all of this as I stated for our marriage to continue, this was necessary. This agreement and conditions of it were made in both [H] and my own self-interest and had nothing to do with maintaining my gun licence.

[H] has previously been a licensed gun holder for decades. In the 30 years we have been married he has never looked to use a firearms to commit suicide. [H]e has also never threatened me or anyone else with a firearm.”

31. Under cross-examination the Applicant stated that she disagreed with the Respondent’s records that suggest that H had threatened to shoot himself. She denied that H had ever threatened to shoot himself. She noted that in regard to the Bacchus Marsh incident H had reportedly threatened to commit suicide by jumping off a cliff. There was no suggestion that he would shoot himself.

32. In regard to the report that H had a suicide fantasy of getting into a shootout with police and being shot and killed she stated that it was herself and not H who had made that suggestion and that the idea was based on a scene in a book that both she and H had read.

33. The Applicant accepts that H has had mental health issues in the past, including alcohol abuse. However, she said that to her knowledge there has been no reason to believe that H would self-harm.

H’s evidence

34. H has provided two statements and was cross-examined. He accepts that in the past he has had an issue with anxiety and depression. He said that these conditions have been exacerbated by the financial and emotional stress resulting from the drought conditions that they had experienced on the property. He stated that those conditions had significantly improved following good rain late last year.

35. H stated that he has never attempted to possess or use the Applicant’s firearms. He stated that he has never threatened the Applicant or any other person with a firearm and he is not contemplating committing suicide by any means, including the use of a firearm.

36. H had some counselling whilst in hospital and he continued receiving counselling with Ms Hargreaves after he was discharged. He found the counselling very beneficial. He has realised that his problem with alcohol affects his mental well-being. He has been taking his medication regularly and he has not drunk alcohol since the June 2019 incident.

37. He stated that he now has coping mechanisms and if the need arises he can return to counselling with Ms Hargreaves.

38. H accepts that his continuing relationship with the Applicant is reliant upon him not drinking alcohol, staying on his medication and seeking help if he has any anxiety issues. He and the Applicant have also agreed that if severe drought conditions reoccur they will sell the property and move back to Victoria.

39. H does not recall the Bacchus Marsh incident in detail and accepts that his lack of recall is probably because of his level of intoxication at the time. He has no recollection of threatening to jump off a cliff. He does not remember ever saying that he had a suicide fantasy of getting into a shootout with police and being shot and killed.

40. In regard to the June 2019 incident he stated that he does not recall telling an Ambulance Officer that he had written a suicide note. He has been unable to find such a note. He stated that he would assume that if he had written a suicide note he would have left it somewhere where it could be found. He stated:

“I am not suicidal and even if I was, I would not need a firearm if I wanted to kill myself. There are many other options available.”

Sergeant Nicole Ward

41. Sergeant Ward was the Supervisor at Bourke Police Station in June 2019 when the Applicant and H attended the Station. She spent some time talking with H. He was upset and slightly intoxicated. She stated that in response to her direct questioning H denied that he was suicidal or thinking of hurting himself.

42. In regard to H’s 000 call Sergeant Ward stated:

I contacted 000 and requested a playback of the phone call between the operator and [H]. I wrote down some of the pertinent words spoken between the 000 operator and [H] and later about 6:30pm wrote them into Police Event E71602372. I heard the caller say "I'm done, I'm on the brink. I don't know why I feel this way." It was a long conversation with 000 and the operator commented that even successful people who seem to have it all, also can feel suicidal. In response to this, the Patient said, "I've been on the brink of it all day."

43. Sergeant Ward stated that she requested an ambulance to attend to transport H to Hospital. She followed to the Hospital and completed the relevant paperwork. She stated that she spoke with NSW Ambulance Officer Tristan Butt who told her that H had said that he had written a suicide note earlier in the day.

44. H does not have any recollection of saying that he had written a suicide note and no evidence has been provided from the Ambulance Officer or of the existence of such a note.

Dubbo Base Hospital documents

45. The Respondent relies on a bundle of documents provided to Mr Bradley Jones, a Forensic Psychologist who provided the Applicant with a report in regard to H.

46. In an entry made on 10 June 2019 under the heading, the hospital notes record:

Pt stated he has been to hospital before for suicidal thoughts years ago but did not have a video conference, and stated it did not help. ... He has been medicated in the past with effexor but stopped that as it was causing weight gain. He recently self-ceased pristiq as he was deeply concerned about uncontrolled angry feelings and outbursts and googled that it was a common side effect of pristiq. Pt describes difficulty controlling his emotions (more anger than sadness) and being triggered by tiny/insignificant events. He described feeling like he could explode at these times and now is the first time he has told anybody he feels at those times as if he could kill someone. Pt has been drinking the past 3 days and today describes suddenly feeling overcome with sadness/emotion/hopelessness and planning to kill himself. Pt states he wrote the suicide note, but has called 000 before acting on plans. ...

47. In another entry apparently made by a paramedic on 10 June 2019 the notes record:

… wrote suicide note and called 000 stating he was going to kill himself … overcome with suicidal feelings … past feelings during anger outbursts that he could kill someone else … easily triggered to have uncontrollable outbursts of anger … has thought of suicide today and in past … emotionally depressed/feeling of hopelessness and things being out of his control … has access to lethal means (firearms) …

48. In a mental health assessment prepared by Clement O'Sheehan on 24 June 2019 an entry under the heading “Current / Recent Substance Use” records:

states goes weeks, months and at times years without alcohol, however once relapses cannot stop drinking for days.

recent relapse, drank for three days without cessation

Expert's report of Bradley Jones

49. The Respondent relies on comments that are included in the report provided by Mr Jones in regard to H. The Respondent points to Mr Jones’ diagnosis that H as suffering from major depressive disorder that is in full remission and alcohol use disorder that is in early remission.

50. Mr Jones stated that H was experiencing minimal levels of anxiety and depression. However, he noted that results of the Alcohol Use Disorder Identification Test (AUDIT) indicated that he is "currently at a high risk of experiencing alcohol problems and is almost certainly alcohol dependent".

51. He noted that H’s behaviour during the June 2019 incident appears to have occurred as a result of him stopping his anti-depressant medication, coupled with the significant stress he experienced due to the drought conditions, and his reliance on alcohol to assuage his depression. Mr Jones reported that H acknowledged having suicidal ideation when drinking alcohol and when hungover. He noted that H is "probably pessimistic and unhappy about his prospects for the future. This is indicative of his difficulties associated with the current drought weather conditions he is experiencing." However, Mr Jones notes the opinion of Dr James Smith, Psychiatric Registrar at Dubbo Hospital that upon H's discharge on 21 June 2019; "... there was no immediate risk of [H] returning home and there were no thoughts of self-harm or suicide. "

49. In regard to H’s anger management, Mr Jones observed that "aggressive behaviours play a role in the clinical picture and that such behaviors may represent a potential treatment complication."

50. Under cross-examination Mr Jones stated that, while it is not always the case, sometimes a threat to commit suicide is in fact a cry for help.

51. Mr Jones recommended that H continue to receive support for his conditions. He stated in his report:

“I believe it would be in [H]’s interests for him to obtain treatment that includes:-

a)    Continuing targeted psychopharmacologic anti-depressant medication;

b)    Alcohol abstinence;

c)   Continued alcohol abuse/relapse prevention counselling;

d)   Interpersonal therapy to help develop appropriate communication strategies;

e)   Cognitive behaviour therapy (CBT) treatment of his anxiety based thinking patterns;

f)   Stress management/emotion coping skills training and Psycho education in relation to more appropriate ways of managing (dis)stress;

g)    Communication and relationship training;

h)    Relaxation training.

55. The evidence suggests that H has followed Mr Jones’ advice in regard to 5 of those 8 suggestions i.e. items a), b), c), e) and h).

Ms Emma Hargreaves

56. Ms Hargreaves is a Bourke Drug and Alcohol Counsellor. She stated that H was engaged in voluntary Drug and Alcohol counselling from July, 2019. Those sessions included cognitive behaviour therapy. She and H had met a total of seven times to address issues relating to his use of alcohol and to develop and maintain management strategies around his abstinence.

57. She stated that she had witnessed a marked improvement in these areas and that H had demonstrated a commitment to maintaining his current state of abstinence. She stated:

[H] has actively engaged in this process and continues to engage well with D&A counselling. [H] continues to adopt and adapt the strategies discussed and has demonstrated a commitment to maintaining his current state of abstinence.

I will continue to meet with H fortnightly to support his current state of abstinence through counselling sessions.

58. She agreed that she was no longer assisting H. She said that H had been the one who decided to discontinue their arrangement but further sessions would be available if the need arises.

59. Ms Hargreaves was not aware of Mr Jones’ assessment of H and agreed that H would benefit from further counselling sessions and psychologist support.

Submissions

60. Each of the parties provided written submissions. There is no dispute in regard to the applicable law or as to the Applicant's good character or knowledge of her requirements pertaining to firearms and their safe keeping.

61. The Respondent notes the evidence that H suffers from a major depressive disorder and alcohol use disorder and experiences levels of anxiety and depression. He is at a high risk of experiencing alcohol problems and is almost certainly alcohol dependent. H acknowledges having suicidal ideation when drinking alcohol and when hungover.

62. The Respondent submits that there continues to be stressors that pose a real threat to H’s psychological welfare. The Respondent also submits that the Tribunal cannot be satisfied that H's alcohol dependency will not give rise to future alcohol abuse, causing further incidents of suicidal ideation.

63. The Respondent notes Mr Jones’ view that H has a long and well-entrenched history of alcohol abuse and a history of depression with poor psychological functioning when becoming distressed. It submits that, in the light of H’s history of mental health concerns, not enough time has passed for the Tribunal to be satisfied that these entrenched issues have been satisfactorily alleviated or controlled or for the Tribunal to be satisfied that there is virtually no risk to public safety. In those circumstances, the Respondent submits that the correct and preferable decision is to affirm the decision to revoke the Applicant's Category AB firearms licence.

64. Mr Mainstone submits that while there have been issues regarding H’s mental health and alcohol abuse in the past, those issues have been addressed and will continue to be addressed in the future. H has undertaken counselling and he will continue to receive counselling should issues resurface. He is compliant with his medication regime and does not consume alcohol.

65. Mr Mainstone notes that the circumstances on the property have significantly improved and that this has removed a major stressor facing H. He also notes that in addition to the coping strategies that H has in place, the Applicant and H have agreed that they would sell the property if the drought worsens.

66. Mr Mainstone also submits that it is significant that the Applicant and H’s marriage is dependent on H continuing to maintain the management strategies that are in place in regard to his abstinence.

67. Mr Mainstone notes that there is no basis on which the Tribunal would conclude that there is any risk of either the Applicant or H misusing firearms in the future and therefor the decision under review should be set aside.

Consideration

68. There is clear evidence that H has a long history of mental health issues and alcohol abuse. I accept that since the June 2019 incident the Applicant and H have attempted to address those issues and that H has been compliant with his medication regime and has not consume alcohol. However, I agree with the Respondent that insufficient time has passed to be satisfied that these entrenched issues have been satisfactorily addressed.

69. Nevertheless, the issue that I need to address is whether there is reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because of her domestic circumstances.

70. I accept that it is probable that H has threatened to commit suicide on more than one occasion. It is probable that he threatened to commit suicide by jumping off a cliff at the time of the Bacchus Marsh incident. It is also probable that H contemplated suicide at the time of the June 2019 incident. On neither of those occasions was there any threat to use a firearm to commit suicide.

71. I must assess the likelihood that H will attempt suicide or self-harm in the future and, if that happens, the likelihood that a firearm will be used.

72. There is no suggestion that H has ever attempted suicide. Nor is there any suggestion that H has ever misused firearms or threatened to misuse firearms in any way. He has not threatened to harm either himself or any other person with a firearm.

73. H has an unblemished history in relation to the possession and use of firearms and he did not contemplate using a firearm to commit suicide. In my view, if H’s threat to commit suicide was more than a cry for help, it is unlikely that he would have carried out the threat using a firearm. There is no reason to think that the situation would be different were he to become suicidal in the future. If H did attempt suicide or self-harm, it is highly unlikely that he would use a firearm. There is no suggestion that H would attempt to harm others.

74. I am not satisfied that there are additional matters that would justify the Applicant’s licence being revoked in the public interest.

75. In the circumstances, it is my view that there is virtually no risk to public safety if the Applicant were given access to a firearm. That being the case, the decision to revoke her Category AB firearms licence should be set aside.

Order

1. The decision by the Commissioner of Police to revoke the Applicant’s Category AB firearms licence is set aside.

**********

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: 03 March 2020