Romeo v Commissioner of Police, NSW Police Force

[2024] NSWCATAD 364

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Romeo v Commissioner of Police, NSW Police Force [2024] NSWCATAD 364

Hearing dates:

27 September 2023

Date of orders:

3 December 2024

Decision date:

03 December 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

K Mobbs, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

Administrative Law – Firearms licencing - refusal – public interest – fit and proper person – safe storage contravention

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Firearms Act 1996 (NSW)

Cases Cited:

AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5

Bottomley v Commissioner of Police [2005] NSWADT 211

Carpenter v Commissioner of Police, NSW Police Force [2023] NSWCATAD 163

Comalco Aluminium (Bell Bay) Ltd v O’Connor (No 2) (1995) 131 ALR 657

Commissioner of Police, New South Wales Police Service v Toleafoa [1999] NSWADTAP 9

Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234

Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16

Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50

Director of Public Prosecutions v Smith [1991] Vic Rep 6; (1991) 1 VR 63

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

Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89

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

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

Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206

McDonald v Director-General of Social Security (1984) 1 FCR 354

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

O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210

Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31

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

Category:

Principal judgment

Parties:

Daniel Romeo (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Solicitors:
Hartmann and Associates (Applicant)
Bartier Perry Lawyers (Respondent)

File Number(s):

2023/00080141

Publication restriction:

1. Pursuant to s 64(1)(c) of the NCAT Act, the publication of the Confidential Material and Confidential Statement or matters contained in the Confidential Material or Confidential Statement is prohibited.

2. Pursuant to s 64(1)(d) of the NCAT Act, the disclosure of the Confidential Material and Confidential Statement or matters contained in the Confidential Material or Confidential Statement is restricted to the Respondent, the Respondent’s legal representatives and the Tribunal.

3. Pursuant to ss 64(1)(b) and 64(1)(c) of the NCAT Act, the publication or reporting of the confidential hearing of these proceedings, including any evidence given during the confidential hearing, is prohibited.

4. Except pursuant to order 5 below, all paragraphs marked “[NOT FOR PUBLICATION]” are not to be published pursuant to s 64(1)(c) of the NCAT Act or to be released to the Applicant.

5. A copy of these reasons, without redaction shall be released to the Respondent.

REASONS FOR DECISION

1. Daniel Romeo (the Applicant) was the holder of a category ABC firearms licence (previous licence) under the Firearms Act 1996 (NSW) (the Act) from 31 August 2007 until that licence was suspended on 26 July 2018. The Applicant’s previous licence was subsequently revoked by the Commissioner of Police, NSW Police Force (the Respondent) on 11 October 2019.

2. On 15 September 2022, the Applicant applied to the Respondent for a category AB firearms licence (the Application) for the genuine reason of “Shoot On Rural Land”. The Applicant responded “Yes” to the question as to whether he had ever had a firearms licence or permit suspended or revoked in New South Wales or elsewhere.

3. On 7 October 2022, the Application was refused by a delegate of the Respondent on the basis that it would not be in the public interest for the Applicant to hold a firearms licence.

4. On 17 October 2022, the Applicant sought internal review of that decision and on 15 February 2023, a delegate of the Respondent affirmed the decision to refuse the Application, with the determination having been reached on varied grounds, namely that the Applicant was not a fit and proper person to hold a firearms licence and that the issuing of the licence would be contrary to the public interest (the Decision).

5. The Applicant applied to this Tribunal on 10 March 2023 for administrative review of the Decision. The matter was heard on 27 September 2023 and no issue was raised in respect of the Tribunal’s jurisdiction in this matter.

Applicable legislation

6. The general principles and objects of the Act are set out in s 3 as follows:

3 Principles and objects of Act

(1)  The underlying principles of this Act are—

(a)  to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and

(b)  to improve public safety—

(i)  by imposing strict controls on the possession and use of firearms, and

(ii)  by promoting the safe and responsible storage and use of firearms, and

(c)  to facilitate a national approach to the control of firearms.

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

(a)  to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,

(b)  to establish an integrated licensing and registration scheme for all firearms,

(c)  to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,

(d)  to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms,

(e)  to ensure that firearms are stored and conveyed in a safe and secure manner,

(f)  …

7. Section 11 of the Act relevantly provides:

11 General restrictions on issue of licences

...

(3)  A licence must not be issued unless—

(a)  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, and

...

(c)  the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and

…

(4)  Without limiting the generality of subsection (3) (a), 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, or

…

(7)  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.

8. Section 19 of the Act relevantly provides:

19   Conditions of licence

(1)  A licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose.

(2)  Without limiting subsection (1), each licence is subject to the following conditions—

(a)  the licensee must comply with the relevant safe keeping and storage requirements under this Act,

…

9. Section 40 of the Act relevantly sets out the licence requirements for a category A or B licence holder as follows:

40   Category A and category B licence requirements

(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—

…

(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,

…

10. Section 40 of the Act relevantly sets out the licence requirements for a category C licence holder as follows:

41   Category C, D and H licence requirements

(1)  The holder of a category C, category D or category H 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 steel safe of a type approved by the Commissioner and that cannot be easily penetrated,

(b)  such a safe must be bolted to the structure of the premises where the firearm is authorised to be kept,

(c)  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 safe containing any such firearm,

(d)  such other requirements relating to security and safe storage as may be prescribed by the regulations.

11. Section 65 of the Act relevantly provides:

65   Supply, acquisition and possession of ammunition

…

(3)  A person must not possess ammunition for any firearm unless the person—

(a)  is the holder of a licence or permit for a firearm which takes that ammunition, or

(b)  is authorised to possess it by a permit.

…

(5)  For the purposes of this Act, the ammunition that a firearm takes includes any ammunition that can be safely fired in the firearm (whether or not that ammunition has the same calibre

Maximum penalty—50 penalty units.

The evidence

12. The Applicant relied on his letter dated 23 August 2023 (exhibit A1) and a further undated letter filed on 20 September 2023 (exhibit A2). The Applicant gave short oral evidence and was cross-examined by Mr Mattson, the solicitor appearing for the Respondent. The Applicant was then re-examined by his solicitor, Mr Kable. The Applicant also relied on undated character references from Ms Amelia Elliston (exhibit A3), Mr Dan Keenan, Director, Keenan Ag Services Pty Ltd (exhibit A4) and Ms Eliza Spry (exhibit A5). Ms Elliston and Ms Spry appeared remotely and were cross-examined.

13. The Respondent relied on the s 58 documents (exhibit R1) and the statement of Sergeant Jed Crouch Anderson dated 25 June 2023 (exhibit R2), that included a USB stick containing the body worn footage of a search warrant conducted on 15 December 2020 (annexures “A” to “H” referred to in exhibit R1). This footage was viewed by me after the hearing.

14. Senior Constable Rebecca Drew gave evidence by way of audio visual link and was cross-examined by Mr Kable.

Submissions

15. Mr Kable made oral submissions at the conclusion of the open hearing, including submissions in reply to those of Mr Mattson.

16. The Respondent relied on the Outline of Open Submissions dated 11 September 2023 (written submissions) and Mr Mattson made oral submissions at the conclusion of the open hearing.

Confidential Hearing

17. At the completion of the open hearing, a confidential hearing was held pursuant to s 49(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). The orders previously made by Senior Member Ransome on 2 August 2023 continued in force.

18. [NOT FOR PUBLICATION]

Role of the Tribunal

19. Section 75(1)(a) of the Act confers jurisdiction on the Tribunal for administrative review of the Respondent’s decision pursuant to s 9 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act). Section 63 of the ADR Act provides that in determining an application for review, the Tribunal is to make the correct and preferable decision having regard to the material then before it, and any applicable written or unwritten law. The Tribunal makes its own decision in place of that of the Respondent and there is no presumption that the decision of the Respondent is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357. In doing so it may exercise all of the functions conferred or imposed by any relevant enactment. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[30], [34]. In an application for review the Tribunal is not restricted to a consideration of the material that was before the decision maker but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31.

20. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23]. Accordingly, the objects and purposes of the Act are relevant.

Issues

21. In the Respondent’s written submissions, it was submitted that the Respondent’s decision to refuse the Application should be affirmed on the grounds that the Applicant is not a fit and proper person and nor is it in the public interest that he hold a firearms licence. In support of this contention, the Respondent relied on the following:

1. The Applicant has long standing associations, including with members of the Applicant’s family, who have extensive criminal histories;

2. The Applicant has a criminal history, from not only as a minor but through to adulthood, with the most recent criminal matter occurring in 2021, when he was aged 32;

3. The Applicant, when aged 30, failed a safe storage inspection in 2018 (despite having declared knowing and being able to fully comply with safe storage requirements) resulting in the revocation of his firearms licence in 2019;

4. During a search of the Applicant’s residential property on 16 December 2020, police found:

1. Cannabis plants and cannabis leaf which resulted in the Applicant being charged with and found guilty of the offence of a prohibited plant;

2. A large quantity of cannabis seed; and

3. Quantities of loose ammunition not stored in compliance with the Act, and at a time when the Applicant was not licenced.

5. The Applicant has a history of traffic infringements and offences, including most recently in 2021 for not wearing a seatbelt.

22. There was a further matter referring to an item found during the search of the property that was claimed to be a prohibited weapon. However, Mr Mattson advised the Tribunal during the hearing that the Respondent no longer relied on this item. Accordingly, I have no regard to this item in my consideration of this matter.

Public Interest

23. I will firstly consider the Respondent’s contention that it is not in the public interest for the Applicant to hold a firearms licence.

24. The phrase “public interest” is not defined in the Act. In O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at [13], the High Court held that the “public interest” imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police, New South Wales Police Service v Toleafoa [1999] NSWADTAP 9 at [25], which dealt with the revocation of a security licence, the Appeal Panel described the public interest ground in the relevant Act in the following terms:

[A]n inherently broad concept giving the [Commissioner] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.

25. The concept does include standards acknowledged to be for “the good order of society and for the well-being of its members”: Director of Public Prosecutions v Smith [1991] Vic Rep 6; (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O’Connor(No 2) (1995) 131 ALR 657, 681, the High Court said:

The purpose of the reference to “public interest” is to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the Commissioner’s consideration. The effect of the reference is to amplify the “scope and purpose” of the legislation.

26. The issue of public interest allows for matters going beyond the applicant’s character to be taken into account. They include 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 at [33]. In the present context, and given the objects of the Act as explicitly and emphatically stated in s 3(1), the primary consideration in relation to the public interest must be public safety.

27. In a familiar passage, Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward), at [28] said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Ward was a case on the "fit and proper person" test, but the formulation has been held to apply to the public interest test as well: Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at [23]; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 at [130].

28. Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 that the Ward decision itself had set aside the Commissioner's decision to revoke a firearms licence because her Honour was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence. Hennessy DP stated at [8]:

The 'virtually no risk' comment was made in the context of the 'fit and proper person' test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests.

29. Other cases have pointed out that the question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near-absolute negative, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] - [66]. Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [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". 

Applicant’s licence history

Notice of Suspension

30. The Notice of Suspension dated 26 July 2018 (Notice of Suspension) (part exhibit 1) indicated that the Applicant’s previous licence was suspended on the grounds “Not fit proper not in the public interest”. By way of a letter emailed to the Respondent on 23 August 2018, from the solicitor for the Applicant at that time, the Applicant sought a review of that decision pursuant to s 22(1)(b) of the Act. Various reasons for the review were set out in the letter.

31. Section 22(1) of the Act provides that:

The Commissioner may, if the Commissioner is satisfied there may be grounds for revoking a licence, suspend the licence by serving personally or by post on the licensee a notice:

(a)  stating that the licence is suspended and the reasons for suspending it, and

(b)  requesting that the person provide the Commissioner with reasons why the licence should not be revoked.

Notice of Revocation

32. The Applicant’s previous licence was subsequently revoked by the Respondent by way of a Notice of Revocation dated 11 October 2019 (Notice of Revocation). Under the heading “Background” in the Notice of Revocation, reference was made to information maintained by the NSW Police Force that indicated that on 21 July 2018, a safe storage inspection at the Applicant’s address failed. It was noted that the that the safe storage was found to be suitable for Category A and B firearms only and that at that time, two Category C firearms were registered to the Applicant.

33. Reference was made to a belief by police that the Applicant’s use of his firearms at his property posed a significant risk to residents in neighbouring houses and in the village, located 600 metres away. The Notice of Revocation also referred to a police report which raised serious doubts as to the Applicant’s ability to continually exercise responsible control over firearms due to his associations with a number of persons with a history of significant drug supply and violence.

34. It was also noted that on 27 July 2017, the Applicant had contacted police requesting information as to why his licence was suspended and he had been advised that it was not in the public interest for the Applicant to continue to hold a firearms licence due to his criminal associations and the use of firearms at his property which was in close proximity to populated areas. It was also noted that between 21 July 2004 and 28 January 2011 he had been issued with six Traffic Infringement Notices.

35. Under the heading “Decision”, it was noted that significant weight had been assigned to the police concerns in the report that recommended the Applicant’s firearms licence be revoked, given that the police had had the benefit of personal contact with him. The Notice of Revocation also noted that the Applicant had breached a condition of his licence by not having Level Two storage which is a requirement for category C firearms. Reference was also made to the Applicant’s traffic record. Based on all of the information, it was determined that it would not be in the public interest for the Applicant to hold a firearms licence and accordingly, his previous licence was revoked.

36. There was no evidence that the Applicant sought a review of the decision by the Respondent to revoke his firearms licence on 11 October 2019 and it did not form part of the review application before this Tribunal.

Issues relating to safe storage

Did the Applicant fail a safe storage inspection in 2018

37. In oral submissions, Mr Kable, the solicitor appearing on behalf of the Applicant submitted that the material relied upon by the Respondent in the s 58 documents did not establish that the Applicant had breached the safe storage conditions on his licence in 2018. Mr Kable made reference to Senior Constable Rebecca Drew’s entries in Event Reference No: E 68550456 from the NSW Police Force database known as COPS (2018 COPS Event). Senior Constable Drew’s entries were made on 21 July 2018 in relation to a safe storage inspection that she carried out at the Applicant’s residence on that day.

38. In his submissions, Mr Kable made reference to s 41 of the Act that sets out the requirements for category C licences and includes reference to the need for a safe to be bolted to the structure of the premises where the firearm is authorised to be kept. It was submitted that the s 58 material establishes that the Applicant’s safe was bolted down. Mr Kable indicated that the only evidence of the Applicant’s breach of the safe storage conditions in 2018 came from the 2018 COPS event and placed reliance on the decision in Carpenter v Commissioner of Police, NSW Police Force [2023] NSWCATAD 163 (Carpenter) at [86]. Mr Kable submitted that the 2018 COPS Event amounts to no more than an allegation and that no evidence was brought by the Respondent to substantiate the allegation. Accordingly, it was submitted that the Applicant had not breached a condition on his licence at any time, including in 2018.

Consideration

39. The initial Narrative Details in the 2018 COPS Event created by Senior Constable Drew record that police attended the Applicant’s residential address in rural NSW in relation to a safe storage of ammunition inspection on 21 July 2018. The reason for the inspection was stated to be that the Applicant was in the process of acquiring an ammunition supply licence and had requested police to inspect his proposed ammunition safe. Police inspected the safe on that day and it was recorded that the safe storage inspection had been passed in relation to “ammunition only.” It was noted that that the Applicant’s safe was located in the garage of the property.

40. The Narrative Details further record that whilst observing the ammunition safe, police noticed that the safe that was in the vicinity for the Applicant’s firearms was suitable for Category A and B firearms. It was noted that subsequent enquiries by police on the COPS system indicated that the Applicant owned category C firearms and the safe that was observed “may not meet those requirements.” It was further noted that the Applicant had never been inspected for a level 2 safe and therefore police intended to return and inspect the safe for level 2 requirements.

41. Under the heading “O/S” which is assumed to be a reference to “outstanding”, the 2018 COPS Event states as follows:

-Licensing Sergeant is to be spoken to before providing the [Applicant] with an (sic) vent number.

-To attend location again and inspect firearms safe.

42. In a further entry on 24 July 2018 by Officer Brett John Ryan, it is noted that the safe storage inspection event had been reviewed by licensing police “and has been failed for the following reasons. Firearms licence is to be suspended by police and firearms seized for the following reasons. Not fit proper person, not in the public interest.”

43. Page 6 of the 2018 COPS Event makes further reference to the safe storage inspection relating to the Applicant. The entry created on 24 July 2018 refers to “Safe Storage Inspection” with an inspection date of 24 July 2018 at 8.00 am and an inspection outcome of “INSPECTION FAILED”. The 2018 COPS Event refers to the inspection levels “Category A & B” and “Category C, D & H” and the comments record the following:

Licensing police have reviewed the safe storage inspection which has been failed. Reasons outlined in event narrative.

44. Senior Constable Drew was made available by way of AVL at the hearing and was cross-examined by Mr Kable. The officer was taken to the 2018 COPS Event, and she agreed that she had undertaken a safe storage inspection of the Applicant’s ammunition safe and that it had passed the inspection. She stated that she did not inspect the Applicant’s firearms safe and just made observations about it, which she intended to speak to the Firearms Registry about.

45. Senior Constable Drew indicated that she subsequently spoke to Sergeant Ryan about the requirements in relation to safe storage of category C firearms and that Sergeant Ryan then started making his own enquiries in relation to the Applicant’s associates. When it was put to her that the Applicant’s firearms licence was not suspended on the basis that he had failed a safe storage inspection, she said “ I don’t believe so.”

46. In re-examination, Senior Constable Drew indicated that she had thought that the Applicant’s safe may not have complied with Level 2 requirements. Senior Constable Drew gave evidence that she did not make the decision to suspend the Applicant’s licence, was not involved in the deliberations and did not write or see the decision.

47. I have taken into account the submissions made by both parties in relation to this issue. Whilst I have had regard to the decision of the Tribunal in Carpenter, each case must be determined on its own merits and in my view the matter before me can be distinguished from that decision. The Applicant in this matter did not adduce any evidence in relation to the safe storage of his category C firearms as of July 2018 or whether his safe complied with the legislative requirements for the storage of such firearms and ammunition at that time. No reference was made by the Applicant to his gun safe being compliant with Level 2 storage requirements in either of his two statements or in his evidence before the Tribunal.

48. I have had regard to the 2018 COPS Event, in particular the observations of Senior Constable Drew and to the review by licensing police and the subsequent recorded finding that the Applicant had failed the safe storage inspection. I have also had regard to the Notice of Revocation which specifically stated that the Applicant had “breached conditions¹ of [his] firearms licence by not having Level Two storage which is a requirement for Category C firearms”.

49. As referred to previously, this review application is limited to the Respondent’s Decision of 15 February 2023 to refuse the Application. There is no evidence before the Tribunal to indicate that the Applicant sought an internal review of the Respondent’s decision to revoke his firearms licence on 11 October 2019 or that an application for review was made to the Tribunal in relation to that decision.

50. Whilst no reasons are given in the documentary material as to the precise reason why the Applicant’s gun safe was found not to be compliant in relation to category C firearms and failed the safe storage inspection, I am satisfied on the evidence before the Tribunal, in particular the references this issue in the 2018 COPS Event and the Notice of Revocation, that this was the case. Accordingly, in all of the circumstances, I am satisfied that the Applicant breached a safe storage condition of his firearms licence in 2018 by not having Level Two storage which is a requirement for the category C firearms held by him at that time.

Search conducted at Applicant’s residential property on 16 December 2020.

51. It was not disputed that police executed a search warrant at the Applicant’s residence on 16 December 2020 and that during the search, cannabis plants, cannabis leaf and cannabis seeds were located at his residence, together with quantities of loose ammunition. It was not disputed that the Applicant did not hold a firearms licence at this time.

52. It was also not in dispute that on 24 March 2021, as a consequence of the finding of two cannabis plants at his residence, that the Applicant pleaded guilty to an offence of cultivate prohibited plant, small quantity, and was released without conviction, subject to a conditional release order for 12 months for the period 24 March 2021 and concluding on 23 March 2022.

53. The statement from Sergeant Anderson sets out details of the search warrant conducted on 16 December 2020. A number of documents were attached to the officer’s statement including the Property Seizure/Exhibit Form (Property Seizure Record) relating to the search warrant, which records the various items located by police during the search and where they were located. These items included loose ammunition that were found in a number of locations in and around the residence, including in the Applicant’s bedroom. Loose ammunition was also located in the garage, in the kitchen and in a hallway cupboard. The ammunition included a mix of .22 calibre, 12 gauge, 410 gauge and .177 air rifle rounds. A firearm bolt was located in the bedroom of the Applicant’s father.

54. The officers who attended the property in relation to the search warrant recorded their attendance on body worn cameras and copies of this footage was in evidence and was viewed by me following the hearing. The footage indicates that spent cartridges were located during the search in the driver side of the Applicant’s vehicle and in his bedroom.

55. During the search, the Applicant told Sergeant Anderson that he used to have a firearm and made reference to another officer who was conducting the search, saying words to the effect of “that dodgy…took it off me” and “he’s pretty dodgy that bloke.” In relation to the loose ammunition found in a baseball cap in the kitchen of the residence, the Applicant denied that the baseball cap was his and denied having seen the ammunition before in his life.

56. The Applicant’s father returned home during the search. When asked about the loose ammunition that had been found, the Applicant’s father said words to the effect of “probably when [the Applicant] had a licence they have been left behind”; “would have been left here, when they came in [to collect the firearms], they just missed it' and “…left them there, and we just didn’t worry about them”.

57. In his statement, Sergeant Anderson said that the Applicant was not charged in relation to the loose ammunition found on the property, as the officer accepted both his and his father’s explanation that it was left over from when the Applicant had previously held a licence, and no firearms were located during the search. Sergeant Anderson indicated that he understood that if the Applicant had held a current firearms licence, this would have been a breach of the conditions of the licence and the relevant regulations in relation to the proper storage of ammunition. Sergeant Anderson was not required for cross-examination.

58. In the Applicant’s second letter (exhibit A2), he stated that he had “no recollection” of the loose ammunition being there. He said that his room was not locked up and that numerous people had access to it.

59. In cross-examination, the Applicant was asked about the loose ammunition found during the search warrant and said that it was some time ago. He referred to his father having had a firearms licence and that he thought the ammunition belonged to him and that is why the Applicant had no recollection of it. The Applicant stated that all of his ammunition had been handed in. He said that he was not aware that his father had told police that the ammunition was left over from when the Applicant had a firearms licence and that he did not recall any ammunition being left behind.

60. The Applicant was asked about the ammunition located in a trophy cup in the garage and said he had not been allowed in during the search. He said that when he held his previous licence, he did not remember having ammunition anywhere but in the safe. He made reference to the bolt from his firearm being found during the search but said that it was not in working order.

61. In re-examination, the Applicant’s evidence was that his father and uncle had previously held a firearms licence. He said that his family had lived in the house for around 50 years and that his father had lost his firearms licence some 25 years earlier, and his uncle some 15 years earlier. He gave evidence that there were two dwellings on the property and that he lived at the property with his father and a minor He stated that as of the date of the hearing, he had moved out of the property four to five months previously, but was still in the process of getting everything out.

Consideration

62. It was not in dispute that the Applicant previously held a firearms licence between 2007 and 26 July 2018 and that during this time his firearms and ammunition were stored at his residence. I am satisfied that as of 21 July 2018, that the Applicant had an ammunition safe as well as a separate safe for his seven firearms. I am satisfied from the documentary evidence that the Applicant handed all of his firearms to a licensed firearms dealer at some time on 26 July 2018 and that his firearms licence was seized by police later on that same day.

63. I am satisfied that the various items, including the loose ammunition, referred to in the Property Seizure Record were located by police in and around the Applicant’s residence on 16 December 2020. It is evident from the Property Seizure Record that at least 12 separate lots of ammunition, were located by police on that day, with at least two of those lots being located in the Applicant’s bedroom, with further ammunition located in the garage, where the Applicant’s ammunition and firearms safes had been located. A number of spent cartridges were also found on the driver side of the Applicant’s vehicle together with a spent round in his bedroom.

64. I have had regard to all of the evidence in this matter, and in particular the ammunition found in the Applicant’s bedroom, which included 17 live rounds of .22 ammunition I have also had regard to the spent cartridges located in the Applicant’s bedroom and in the driver side of his vehicle. In the circumstances, I accept the responses given to police by the Applicant’s father in relation to the loose ammunition found during the search on 16 December 2020. Accordingly, I am satisfied that the loose ammunition and the firearms bolt located by police belonged to the Applicant and were left over from the period when he had held his previous licence, namely between 2007 and 26 July 2018.

65. Given this finding, it follows that I do not accept that the ammunition belonged to the Applicant’s father or uncle, particularly as it has been some 25 and 15 years respectively since they held firearms licences.

66. As referred to previously, the possession of ammunition for any firearm without a permit or licence constitutes an offence under s 65(3) of the Act. The evidence of Sergeant Anderson was that the Applicant was not charged in relation to the possession of the ammunition on the basis that the officer accepted that the ammunition was left over from when the Applicant previously held a licence, and no firearms were located during the search. In light of my finding that the loose ammunition belonged to the Applicant, I am satisfied that he was in possession of it, even though he was not charged with any offence in relation to it.

67. In circumstances where it was not in dispute that the Applicant has not held a firearms licence since 26 July 2018, it follows that as of 16 December 2020, the ammunition and spent cartridges that were located by police must have been at the Applicant’s premises for a period of over two years and I am satisfied that this is the case.

68. Whilst it is not necessary to do so, I note that even if I had not been satisfied that the loose ammunition belonged to the Applicant, I would have had regard to the fact that loose ammunition was found in the Applicant’s residence, including in his bedroom. As the holder of a previous firearms licence, the Applicant should have been aware that he not able to possess ammunition whilst unlicenced and would also have been aware of the requirements of a licence holder to safely store all ammunition. It is clear that the loose ammunition had not been safely stored and that the Applicant had not handed it into the police.

69. Whilst the Applicant was not charged in relation to his possession of the ammunition, the Tribunal is able to take into account matters indicating criminal conduct: Joseph v Commissioner of Police, NSW Police Force [2017] NSWCA 31 at [62]-[64]. It is the conduct rather than the conviction that is of concern to the Tribunal: Esterman v Commissioner of Police, NSW Police Force [2014] NSWCATOD 70 at [30]. I give significant weight to the Applicant’s conduct in this regard in reaching my determination in this matter.

Further incidents involving safe storage

70. The Respondent’s written submissions make reference to a previous failure by the Applicant in 2010 to comply with safe storage requirements (2010 incident) and relied on COPS Event Reference No: E 42014201 (2010 COPS Event). The 2010 COPS Event refers to police pulling over a vehicle being driven by the Applicant on 20 August 2010. The vehicle was searched by police who located nine .22 bullets located in the glovebox. The 2010 COPS Event records that the Applicant was cautioned, and he stated that he had a firearms licence and had recently been shooting. As he was the holder of a current firearms licence, the Applicant was then given a warning by police in relation to the unsecured ammunition.

70. No challenge was made by the Applicant in relation to the 2010 COPS Event and no evidence was given by the Applicant in relation to the 2010 incident. In the circumstances, I accept that the 2010 incident set out in the 2010 COPS Event occurred and that the Applicant received a warning from police in relation to having unsecured ammunition in his vehicle at that time.

The Application

72. As previously referred to, the Applicant did not seek a review of the decision made by a delegate of the Respondent to revoke his firearms licence on 11 October 2019 and instead lodged the Application on 15 September 2022 for the genuine reason of recreational hunting/vermin control based on permission to shoot on rural land. In the Application, the Applicant appropriately disclosed that he had previously had his licence suspended or revoked.

73. In the Applicant’s letter of 28 August 2023 (exhibit A1), the Applicant stated that he had held his gun licence for 11 years without incident. Similar submissions were made on his behalf at the hearing. In light of my finding that the Applicant received a police warning for the 2010 incident, I do not accept that the Applicant held his firearms licence from 2007 to 2018 without incident. It is evident that the Applicant’s licence was suspended in 2018 and subsequently revoked and I have previously made a finding that the Applicant failed a safe storage inspection in relation to Level two storage for his category C firearms.

74. I have had regard to the character references adduced by the Applicant. The first is from his employer, Mr Dan Keenan, who states that the Applicant is a kind, hardworking and very responsible person and that he “has always been conscious of rules and procedures.” There is a further reference from the Applicant’s partner, Ms Spry, in which she refers to the Applicant having made some “mistakes” in his youth and to “completely” settling down after the birth of his son in 2015. The reference from Ms Elliston also refers to the Applicant being open about mistakes made in his youth. As referred to previously, Ms Elliston and Ms Spry gave oral evidence at the hearing.

75. None of the character witnesses made reference to the previous firearms licence held by the Applicant, the 2010, the circumstances surrounding the suspension and revocation of the Applicant’s firearms licence or the finding of the loose ammunition by police at the Applicant’s premises in December 2020. As a consequence, I give no weight to these character references in my consideration of these matters in my determination.

76. I am satisfied that in each of his three applications for licences in 2007, 2012 and 2017 that are contained in the s 58 documents, the Applicant declared that he fully understood and could comply with the firearms safekeeping requirements of the Act and associated Regulation.

77. In Bottomley v Commissioner of Police [2005] NSWADT 211, the Tribunal held at [20]:

20 Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them. 

78. In Bevan v Commissioner of Police, New South Wales Police Service [2004] NSWADT 1, the Tribunal said at [26]:

26 The Tribunal accepts Ms Patterson’s submissions that contraventions in respect of failing to meet the safe storage requirements as set out under Part 4 of the Act are fundamental in their nature in that they are contraventions, which go to the crux of the principles and objectives of the Act…

79. In making a decision in this matter, the Tribunal is required to consider all relevant matters and give proper, genuine and realistic consideration to each relevant matter. The Appeal Panel said in Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 at [24]-[25]:

24.   The purpose of the firearms legislation is clear from the statutory principles and objects of the Firearms Act. The possession and use of firearms is subject to the “overriding need to ensure public safety”: Firearms Act s 3(1)(a). Public safety is improved by “imposing strict controls on the possession and use of firearms” and by “promoting the safe and responsible storage and use of firearms”: Firearms Act s 3(1)(b). The objects of the Act include “to establish an integrated licensing and registration scheme for all firearms;” “to require each person who possesses or uses a firearm . . . to prove a genuine reason for possessing or using the firearm;” and “to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms”: Firearms Act, s 3(2)(b), (c) and (d).

25.   In that statutory context it is uncontentious that a relevant consideration is the applicant’s previous conduct. More weight may be given to conduct which directly relates to the regulated activity, but anything that the applicant has done which could affect the public interest is relevant…

80. It is an underlying principle of the Act to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety. The objects of the Act include the provision of strict requirements that must be satisfied in relation to the licensing of firearms and to ensure that firearms and ammunition are stored and conveyed in a safe and secure manner. 

81. I have had regard to the findings that I have made above in relation to the Applicant’s conduct concerning:

1. the 2010 incident in which he breached a condition of his licence by having unsecured ammunition in his vehicle and for which he received a warning from police;

2. his breaching a condition of his previous firearms licence in 2018 by not having Level 2 storage which was a requirement for the category C firearms (2018 incident); and

3. him possessing loose ammunition at his residence in 2020 following the suspension and subsequent revocation of his previous licence (2020 incident).

82. It is clear that each of these three incidents related to a failure by the Applicant to comply with the relevant legislative provisions for the safe storage of firearms and ammunition. In light of the findings that I have made, I am not satisfied that there is virtually no risk if the Applicant was to hold a firearms licence and possess firearms.

83. In my view, the 2020 Incident is particularly serious, as it occurred after the warning given to the Applicant for similar conduct in relation to the 2010 incident and in circumstances where the Applicant had not held a firearms licence for over two years as his previous licence had been revoked. Multiple quantities of loose ammunition were found by police in various locations within the Applicant’s residence, including in his bedroom, leading to the potential for such ammunition to be lost, stolen or otherwise come into the possession of a person not authorised to possess it and resulting in significant concerns about public safety.

84. On this basis, I note that even if I had not been satisfied that the 2018 incident had been made out, this would not have affected my assessment of the risk in relation to the Applicant holding a firearms licence and possessing firearms.

85. I have also taken into account that the considerations of the Applicant’s private interest in having a firearms licence are outweighed by the public interest.

Conclusion

86. Having regard to the principles of the Act, and the findings that I have made, I am satisfied that the issue of a firearms licence to the Applicant would be contrary to the public interest. Accordingly, I am satisfied that the Application should be refused, and that the correct and preferable decision is to affirm the Respondent’s Decision.

87. Having made this decision, it is not necessary for me to consider the further evidence relied upon by the Respondent in relation to the other public interest grounds, or to consider whether the Applicant is a fit and proper person for the purpose of the Act. For the avoidance of any doubt, I have only had regard to the open evidence in making my determination in this matter.

Order

88. The decision under review is affirmed.

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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 December 2024