Sartor v Commissioner of Police, NSW Police

[2006] NSWADT 291

CITATION:	Sartor v Commissioner of Police, NSW Police [2006] NSWADT 291
DIVISION:	General Division
PARTIES:	APPLICANT Giuseppe Mario Sartor RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	063137
HEARING DATES:	21/07/2006
SUBMISSIONS CLOSED:	07/21/2006
DATE OF DECISION:	10/05/2006
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Firearms Act - firearms licence - issue of licence or permit - Firearms licence - issue of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Firearms Act 1996
CASES CITED:	Dewar v Commissioner of Police, New South Wales Police Service [2003] NSWADT 115 Rosenboom v Commissioner of Police, New South Wales Police [2006] NSWADT 10 Uzelac v Commissioner of Police, Ministry of Police [2003] NSWADT 226 Vella -v- Commissioner of Police, NSW Police Service [2003] NSWADT 91 Wiltshire v Commissioner of Police, New South Wales [2005] NSWADT 75
REPRESENTATION:	APPLICANT In person RESPONDENT W Pisani, agent
ORDERS:	The decision under review is affirmed

1 Mr Sartor operates farming properties in the Hillston area. He has held and used firearms in relation to his operations as a primary producer. For many years he has held firearms licences under the Firearms Act 1996 (“the Act”). He was issued with a Category ABC firearms licence in October 1997 and a recommendation for it to be reissued was made in November 2002.

2 A Photographic Advice was sent to Mr Sartor in March 2003 however he failed to attend a Motor Registry to get the firearms licence and the Photographic Advice expired in May 2003. Mr Sartor has not held a firearms licence since then.

3 Mr Sartor became aware that his licence had expired in August 2005. He rang the Firearms Registry and requested a new licence. In early September 2005 Mr Sartor was notified that the application was refused. An internal review affirmed the refusal and Mr Sartor has applied to this Tribunal for a review of that decision.

The Commissioner’s Case

4 Mr Pisani, agent, appeared for the Commissioner and relied on the brief of evidence filed in the matter.

5 The Commissioner formed the view that it is not in the public interest for Mr Sartor to continue to hold a firearms licence. Mr Pisani contended that Mr Sartor’s approach to his responsibilities as a licence holder has been careless, and therefore placed public safety in jeopardy. He pointed to the evidence showing that Mr Sartor failed to maintain a current licence, failed to store firearms in accordance with legislative requirements and failed to report the theft of a firearm. Mr Pisani also argued that because of the length of time that had elapsed since Mr Sartor first applied for the licence, the Commissioner could not be satisfied that the genuine reason for a firearms licence remained, or that the information supplied in his application was still correct.

6 Without a current licence Mr Sartor was not authorised to possess or use firearms and he was required to surrender all firearms in his possession. In September 2005 Police attended Mr Sartor’s property to seize those firearms that were registered to him. At that time Mr Sartor informed the police that he was unable to surrender one of those firearms because it had been stolen. He said that it had been stolen sometime in July 2005. Mr Sartor conceded that he had failed to report this theft to Police.

7 The Commissioner accepts that Mr Sartor had a suitable safe in which to store his firearms, however he points to Mr Sartor’s admission that he kept the keys to the safe in an unlocked drawer only 10 metres away from the safe. There were no signs of forced entry or damage to Mr Sartor’s safe and the Commissioner contends that the stolen firearm was stolen through Mr Sartor’s neglect.

8 The Commissioner relies on statements that Mr Sartor made in an electronically recorded interview with police in December 2005. Mr Sartor conceded that he sometimes left the stolen firearm unsecured for several hours at a time, either in his vehicle or behind the wardrobe or fridge. He found it inconvenient to have to place the firearm in the safe after each time it was used. He stated ‘that sort of thing takes a bit of time’ and that if you are ‘going to leave it in a locked room all the time, you might as well not have it.’ The Commissioner says that these statements confirm Mr Sartor’s casual attitude in relation to the security of firearms.

9 Mr Pisani referred to the legislative policy behind the registration and storage provisions set out in the Act, being the improvement of public safety by imposing strict controls on the possession and use of firearms and promoting the safe and responsible storage of firearms.

10 Mr Pisani referred to comments by the Hon J W Shaw, Attorney General and Minister for Industrial Relations, in the Second Reading speech on 25 June 1996 where he stated at page 3559 of Hansard:

“Legislation should have the effect of making failure to store firearms in the manner required an offence, as well as a matter that will lead to the cancellation of the licence and the confiscation of all firearms. Measures should be indicated in legislation for the storage of firearms which are specific and clear so that firearm owners and possessors know their obligations and the following minimum basic standards should apply.”

11 Mr Pisani also referred to previous determinations of the Tribunal in support of the decision to refuse Mr Sartor a licence. In particular he referred to views that I expressed in Wiltshire v Commissioner of Police, New South Wales [2005] NSWADT75, as follows at paragraph 24:

“Ensuring that only permitted firearms are in the possession of licensees and that those firearms are stored in a safe and secure manner decreases the likelihood that they may be used in committing serious offences against the community. It is clear from the legislation that Parliament has identified these matters as central and critical objectives of the legislation. Those principles and objectives have been reinforced in numerous decisions of this Tribunal.”

12 Mr Pisani submits that I should take a similar approach to that in Wiltshire where I considered that the applicant's conduct must be viewed with reference to those decisions, and observed that “Parliament did not leave the matter of the manner in which firearms are to be stored to the discretion of licence holders but instead elected to impose detailed and prescriptive requirements on all licences.” He argues that there should be no looking below the standard set by the Act for safe storage as non-compliance runs the very real risk of the firearms being stolen.

Mr Sartor’s case

13 Mr Sartor provided a written statement and also gave oral evidence before the Tribunal. He also relies on a number of testimonials prepared for these proceedings provided by members of the local community including politicians, local business people and friends of long standing. The references testify to Mr Sartor’s high standards and good character.

14 Mr Sartor’s evidence is that he has a need for firearms in relation to his operations as a primary producer. He contends that a firearm is a tool for use on his property. There are situations where animals have to be put down, and a gun is the most humane way to do so. It is also important that he is able to control pests including feral pigs, crows and foxes.

15 He provided a frank account of his operations and the manner in which he uses his firearms and the difficulty that he saw from strict compliance with the legislative requirements.

16 Mr Sartor conceded that his honesty might in fact work against him to some extent. However, he does not accept that it would be in the public interest to prevent him from holding a licence. He says that he accepts the importance of keeping firearms safe and secure and gives an assurance that he will do so in the future.

Findings

17 I have no concerns about Mr Sartor’s character. I accept the evidence provided in the testimonials that he is well respected in the community and is known for his honesty and integrity. I also accept that Mr Sartor genuinely regrets what has happened.

18 Nevertheless, I have concerns with respect to Mr Sartor’s understanding of the obligations imposed on the holder of a firearms licence. In Vella -v- Commissioner of Police, NSW Police Service [2003] NSWADT 91 I stated that the principal issue in matters where there has been a failure to store firearms safely is whether there is a risk to the safety of the public if the applicant retains the licence.

19 The Tribunal has considered numerous applications relating to the revocation of a firearms licences where the licence holders have failed to meet the requisite storage requirements contained in Part 4 of the Act. The principles, which emerge from these decisions were summarised by the Deputy President in Uzelac v Commissioner of Police, Ministry of Police [2003] NSWADT 226 at paragraph 19:

“19 The legal principles which apply to the revocation of a firearms licence have been set out in previous decisions of this Tribunal. In summary, the following principles can be extracted:

- while there is no onus of proof on either party, for the Tribunal to set aside a revocation decision based on failure to store firearms safely an applicant must show that there are persuasive and relevant considerations that take their matter outside the ordinary case. (Phegan -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 127; Hart -v- Commissioner of Police, New South Wales Police Service [2003] NSW ADT 114 [51] to [54]);

- the principal issue is whether there is a risk to the safety of the public if the applicant retains the licence. (Vella -v- Commissioner of Police, NSW Police Service [2003] NSWADT 91 at [35]). Relevant considerations include:

- the reason for failing to store the firearm safely;

- the length of time the firearm was not stored safely;

- the potential or real danger posed by failure to store the firearm safely;

- the person's previous conduct in relation to storage of firearms and any related matter;

- the person's understanding of the importance of safe storage and the likelihood that firearms will not be stored safely in the future; and

- the reason the person has a firearms licence, keeping in mind that firearms possession and use is a privilege that is conditional on the overriding need to ensure public safety. (Moody -v- Commissioner of Police, New South Wales Police [2002] NSWADT 146 at [25])

- in relation to the first three considerations, if the breaches of the Act or regulations are trivial or excusable, as distinct from fundamental, there is less likelihood of a risk to public safety ( Cusumano -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 50

- the discretion to revoke a licence must be exercised keeping in mind the nature of the conduct and the principles and objects of the Act; (Yaghi -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 91 at [37].

20 In this matter the evidence shows, and Mr Sartor has conceded, that at least one firearm was not stored safely. The safe storage of firearms is critical for public safety. The failure to secure firearms presents the risk that they will fall into the hands of persons who are not licensed or trained in their safe use. The facts in Vella, Rosenboom v Commissioner of Police, New South Wales Police [2006] NSWADT 10 and Dewar v Commissioner of Police, New South Wales Police Service [2003] NSWADT 115 provide examples of the potential for misuse should firearms fall into the wrong hands.

21 The fact that Mr Sartor cannot identify the date on which or the location from which the gun was stolen, together with his comments generally in the police interview on 2 December 2005, indicates that there were lengthy periods where the firearm was not stored safely. The main reason advanced by Mr Sartor to explain this failure is inconvenience. The consequence of Mr Sartor’s failure to observe his obligations with respect to safe storage is that the firearm in question is now most likely in the hands of a person who is not licensed to possess a firearm. Mr Sartor’s failure to report the theft for a number of months after the event further compounded the risk to the community.

22 The 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. In the circumstances I am not satisfied that Mr Sartor has sufficient understanding and appreciation of the importance of safe storage, or his obligations under the Act generally. That being the case I could not be confident that his firearms will be stored safely in the future.

23 It is my view that more would be required before the public could be comfortable with Mr Sartor again holding a firearms licence. It follows in my view that the correct and preferable decision is to refuse Mr. Sartor’s firearms licence application. Accordingly I affirm the Commissioner's decision.

24 I appreciate that the refusal to grant Mr Sartor’s application will have consequences for him as a primary producer. However, he could take steps to overcome his present lack of understanding of the statutory obligations. At the bare minimum this would require that Mr Sartor completed, to the satisfaction of the Commissioner, firearms training and safety courses relevant to the licence that he seeks.

Order

The decision under review is affirmed.