Scattini v Commissioner of Police, New South Wales Police Service

[2003] NSWADT 155

CITATION:	Scattini v Commissioner of Police, New South Wales Police Service [2003] NSWADT 155
DIVISION:	General Division
PARTIES:	APPLICANT Roberto Scattini RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	023310
HEARING DATES:	27/03/2003
SUBMISSIONS CLOSED:	03/27/2003
DATE OF DECISION:	07/03/2003
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	Firearms Act - firearms licence - revocation of licence or permit - Firearms licence - revocation of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Firearms (General) Regulation 1997 Firearms Act 1996
CASES CITED:	Yaghi v Commissioner of Police, NSW Police Service [2001] NSWADT 91 Pantle v Commissioner of Police [2001] NSWADT 207 Wilkinson v Commissioner of Police [2002] NSWADT 59 Federici -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 183 Phegan v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 127 Ward -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 Hart -v- Commissioner of Police, New South Wales Police Service [2003] NSWADT 114
REPRESENTATION:	APPLICANT S Mainstone, solicitor RESPONDENT D Paterson, solicitor
ORDERS:	The Commissioner’s decision to revoke Mr. Scattini’s Category AB firearms licence is affirmed.

The Application

1 These proceedings relate to a decision by the Commissioner of Police, New South Wales Police Service (“the Commissioner”) to revoke the category AB firearms licence held by Mr Roberto Scattini. Mr. Scattini has held firearms licences since May 1992. He was issued the licence in question on 22 April 1999, and it would have been due to expire on 3 June 2004. However, this licence was revoked on 10 October 2002.

Background

2 The decision to revoke Mr. Scattini’s licence followed an incident on 31 January 2001. Mr. Scattini’s residence was subject to a break, enter and steal and Mr. Scattini’s firearm was stolen. Mr. Scattini was subsequently charged and appeared before the Sutherland Local Court for the offences of 'Not keep firearm safely' and 'Not prevent Theft/Loss of firearm'. He was convicted of each offence and fined the sum of $500 for each offence.

3 On 15 October 2002 Mr. Scattini sought an internal review of the Commissioner’s decision to revoke his licence. The internal review was finalised on 5 December 2002 and the decision was taken that the original decision to revoke Mr. Scattini’s licence was to stand. Mr. Scattini applied to the Tribunal for review of that decision.

4 The facts of this matter are not in dispute. Mr. Scattini has had a long association with firearms. Mr Scattini is an active member of the Sporting Shooter's Association of Australia and is a well-respected member of the community. Testimonials provided on his behalf support this view. With the exception of the incidents associated with this particular matter, there is no issue in relation to Mr. Scattini’s conduct or character.

Reviewable decision

5 The reviewable decision is that of the Commissioner to revoke Mr. Scattini’s firearms licence. On 24 December 2002 Mr. Scattini applied to this Tribunal for review of the Commissioner's decision. The matter was listed before the Tribunal’s President on 4 February 2003 at which time he made directions for the filing of documents and the matter was listed for hearing. The matter subsequently came before me for hearing on 27 March 2003 and proceeded on that day.

Applicable Legislation

6 Section 63 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”) provides for the approach to be taken by this Tribunal in determining an application for a review of a reviewable decision. Section 63 provides:

“63 Determination of review by Tribunal

(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.

(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:

(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or

(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.”

7 The legislation of most relevance to these proceedings is the Firearms Act 1996 (“the Act”) and the Firearms (General) Regulation 1997 (“the Regulation”). The objects of the Act are set out in section 3 which, insofar as is relevant to these proceedings, provides:
“3 Principles and objects of Act

…

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

…

(e) to ensure that firearms are stored and conveyed in a safe and secure manner”.
8 A licence is held subject to conditions. Section 19 of the Act sets out conditions relevant to these proceedings as follows:
“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 The relevant safe keeping and storage requirements are set out in Part 4 of the Act as follows:
“Part 4 - Safe keeping of firearms

39 General requirement

(1) A person who possesses a firearm must take all reasonable precautions to ensure:

(a) its safe keeping, and

(b) that it is not stolen or lost, and

(c) that it does not come into the possession of a person who is not authorised to possess the firearm.

Maximum penalty: 50 penalty units or imprisonment for 2 years, or both, if it is established beyond reasonable doubt that the firearm concerned was a prohibited firearm or a pistol, or 20 penalty units or imprisonment for 12 months, or both, in any other case.

(2) The regulations may specify the precautions that are taken to be reasonable precautions for the purposes of this section.

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:

(a) when any such firearm is not actually being used or carried, it must be stored in a locked receptacle of a type approved by the Commissioner and that is constructed of hard wood or steel and not easily penetrable,

(b) if such a receptacle weighs less than 150 kilograms when empty, it must be fixed in order to prevent its easy removal,

(c) the locks of such a receptacle must be of solid metal and be of a type approved by the Commissioner,

(d) any ammunition for the firearm must be stored in a locked container of a type approved by the Commissioner and that is kept separate from the receptacle containing any such firearm,

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

Maximum penalty: 20 penalty units or imprisonment for 12 months, or both.

(2) A licensee does not have to comply with the requirements of this section if the licensee satisfies the Commissioner that the licensee has provided alternative arrangements for the storage of firearms in the licensee’s possession that are of a standard not less than the requirements set out in this section.”

10 The Regulation makes provision for the issue of a licence only if the applicant understands the requirements of the Act concerning firearm safety and storage. Clause 7 of the Regulation provides:
“7 Licence applicant's understanding of requirements concerning firearm safety and storage

Before being issued with a licence, the applicant must prove to the Commissioner's satisfaction:

(a) that the applicant is aware of, and understands, the requirements of the Act concerning firearm safety and storage, and

(b) that the applicant will, if issued with a licence, be able to comply with those requirements.”

11 The power of the Commissioner to revoke a firearms licence is set out in section 24 of the Act as follows:
“24 Revocation of licence

(1) A licence that authorises a person to possess or use a firearm is automatically revoked if the licensee becomes subject to a firearms prohibition order or an apprehended violence order.

(1A) The Commissioner must revoke a licence that is held for the purpose of employment as an armed security guard (within the meaning of the Security Industry Act 1997) if the licensee has failed to undertake any firearm safety training required under this Act or the regulations.

(2) A licence may be revoked:

(a) for any reason for which the licensee would be required to be refused a licence of the same kind, or

(b) if the licensee:

(i) supplied information which was (to the licensee’s knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or

(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or

(iii) contravenes any condition of the licence, or

(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or

(d) for any other reason prescribed by the regulations.

(3) The Commissioner of Police may revoke a licence by serving personally or by post on the licensee a notice stating that the licence is revoked and the reason for revoking it.

(4) The revocation of a licence by such a notice takes effect when the notice is served or on a later date specified in the notice.

(5) The Commissioner may, by serving a further notice on the holder of a licence, cancel a notice revoking a licence before the notice takes effect.”

12 The Commissioner may also revoke a firearms licence on public interest grounds pursuant to clause 17 of the Regulation. Clause 17 provides as follows:
“17 Revocation of licence - additional reasons

In accordance with section 24(2)(d) of the Act, a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is issued to continue to hold it.”

Mr. Scattini's case

13 Mr. Scattini relied on a statement dated 24 February, 2003 which purported to address some of the Commissioner’s concerns and provides a reasonable outline of his case. That statement provides:

“I have been a licenced shooter since 1983 and a member of the Sporting Shooters Association Australia since 1987. I am a regular recreational shooter and enjoy my sport.

Shortly prior to 31 January 2001, I moved into rented premises at 33 Robinson Street, Monterey. I had contacted the Real Estate Agent to seek approval to drill the premises to install my gun safe so that I could properly keep my .308 Ruger and .22 Winchester rifles safely and in accordance with the Firearms Act. Whilst awaiting this approval, I thought it would be safer to keep my firearms within a cabinet inside my premises than at any other location. The premises are fully secured with security screen doors and deadlocked main doors, both front and back. All the windows of the premises are also covered by steel bars. I have enclosed photographs depicting the windows of the premises …

I placed my firearms within a cupboard inside the premises and then placed two computer desks in front of this cupboard to limit access to it. As I was of the belief that approval from the landlord to drill the premises for my gun safe was imminent, I thought this was the most appropriate and reasonable short term safe storage available.

On 31 January 2001, I secured the premises by locking all the windows and doors and left to attend work. During the afternoon my son contacted me at work. When I returned home later that day, I found that the front door had been broken through and property had been stolen from my premises. This included my .308 Ruger rifle from the cupboard in which it had been stored. The Police where already at my home and they made a report of the theft from my premises.

On 17 August 2001, I appeared at the Sutherland Local Court after being summonsed by the Police for not keeping my firearm safely and not preventing its loss. I pleaded not guilty to these offences but after a hearing I was convicted and the Magistrate imposed a $500.00 fine for each offence. Upon receiving the summons and prior to appearing at Court, I did not receive any legal advice in relation to the summonses or the implications regarding my firearms licence. I appeared unrepresented at the hearing in the Local Court.

In May 2002 I moved to my present premises. When I moved in I had my gun safe installed in the townhouse. It is bolted to the floor and complies with the requirements of the Firearms Act. I do not store any firearms in the safe at present as my .22 calibre Winchester rifle was taken by the police and is at the St. George Local Area Command.”

14 Mr. Mainstone, Solicitor for Mr. Scattini, provided both written and oral submissions in support of Mr. Scattini’s case. The written submissions provide a reasonable outline of Mr. Scattini’s case and stated:
“The Respondent has determined that as a result of the conviction recorded against the Appellant, it is not in the public interest for him to continue to retain his firearms licence. The respondent relies on s 24(2) and s 11 (5)(b) of the Firearms Act 1996 (hereafter referred to as the "Act") in this regard and clause 17 of the Firearms Regulation 1997 (herein after referred to as the "Regulation".

It is the Appellant’s submission that s 11 (5)(b) of the Act is not relevant. S 24(2) should not be read in conjunction with s 11(5)(b). The latter is directed at people applying for licences as distinct from people who already have licences. In Yaghi v Commissioner of Police, NSW Police Service the Tribunal found that the power to revoke may not be exercised where a person has been found guilty of an offence subsequent to the application for and granting of a licence. The respondent does not make any submission in either the original decision of the Commissioner's delegate or in the Internal Review other than relying on s24(2) as read in conjunction with sl1(5)(b). In fact, in the original decision of the delegate, clause 17 of the Regulation is specifically mentioned as the law relied upon to support the decision that the Appellant is not a fit and proper person. The clause relates specifically to s24(2)(d)and states;

"In accordance with section 24(2)(d) of the Act, a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is issued to continue to hold it."
On that basis it is the Appellant's submission that the only ground upon which the Respondent relies is the Appellant is not a fit and proper person.

The power to revoke a firearms licence has not been made mandatory by the legislature, nor does it provide any express guidance as to how the Commissioner's discretion should be exercised. It is therefore reasonable to conclude that not all contraventions or breaches of the Act warrant the exercise of the revocation power. Once a person who holds a licence has been convicted of an offence, it becomes a matter of discretion whether they are able to keep their licence.

There is no evidence which suggests the Appellant is not a fit and proper person or otherwise a threat to the public. He has no other convictions of any kind and there is no evidence to suggest that he has ever used his firearm in any way that would lead to that conclusion. In the Internal Review, it was confirmed that the Appellant’s character was not in question.

The offences to which the revocation order relates occurred over 2 years ago. The Appellant found himself in the position that he could not properly comply with his requirements under the Act, as he could not drill holes in the floor to accommodate his gun safe until he received permission from his new landlord. He formed the view that due to the nature of the security at his new premises, including security doors, deadlocks and window bars, he would be able to safely store his 2 firearms until the imminent approval to install his gun safe was granted. He went to the further effort of securing the firearms without ammunition inside a cupboard behind 2 computer desks. The Appellant could not anticipate that his premises would be broken into and his property stolen. The premises were secured and entry was gained by breaking through the front doors. The Appellant’s firearms were not in a public place. They were in his home, were not loaded and were not accessible to the public.

The Appellant understands his error and accepts the decision of the Magistrate in the Local Court. He has learned from his error and has an improved understanding of his responsibilities. There is evidence before the Tribunal that the Appellant has now installed his gun safe at his new premises in accordance with the Act. There is no evidence to either suggest or establish that the Appellant's improper conduct is likely to recur.

It is an important consideration for the Tribunal to consider the time since the occurrence of the offences leading to the revocation order and the present circumstances regarding the Appellant’s likelihood of committing further offences. In this regard, the Appellant relies on the findings of the Tribunal in Pantle v Commissioner of Police [2001] NSWADT 207 and Wilkinson v Commissioner of Police [2002] NSWADT 59. In Pantle, the incidents giving rise to the revocation of his licence occurred 5 years previously and the Tribunal was satisfied that despite his conduct, he was now a fit and proper person to have a licence. In Wilkinson, the Tribunal decided that his failure to store his firearms safely, whilst a serious matter, was committed while he was profoundly depressed and that medical evidence confirmed he no longer suffered from Depression.

The Appellant submits that both these authorities are relevant in that over 2 years have elapsed since the incidents giving rise to the Appellant’s revocation order (Pantle) and his circumstances have now changed in that he has been able to install a gun safe since permission from his landlord was granted (Wilkinson).

The Appellant further relies on the report of Senior Constable Eichler which recommends that if the Appellant’s premises comply with the Act, then his remaining firearm in Police custody be returned.

The Appellant submits that the conviction for the offences alone are not sufficient bases upon which to draw the conclusion that he is not a fit and proper person. To render a licensee to be such requires more than simply a contravention of the Act. It is submitted that there is no evidence other than the contravention of the Act upon which the Respondent relies.

Regarding the Internal Review to confirm the Commissioner's original decision, matters other than that considered by the delegate were taken into account. This specifically relates to an allegation that the Appellant failed to notify the Firearms Registry of his change of address. The Appellant submits that this should be disregarded by the Tribunal. This issue is not a determining factor in the delegate's original decision, nor was the Appellant charged with any offence relating to this.

It is further submitted that the reviewing officer placed too much weight on the findings of the Magistrate at the Sutherland Local Court. The review placed "substantial weight" on these findings. The Magistrate convicted the Appellant and fined him $500.00 for each offence. In Yaghi the Magistrate at the Downing Centre Local Court convicted him of the 2 offences and fined him $500.00. It is submitted that the convictions recorded and fines imposed are not relevant to whether the Appellant is a fit and proper person. What is highly relevant is that in both the Appellant’s and Yaghi's matters at the Local Court, the identical penalties were imposed. Further, the penalty imposed in Yaghi was not found by the Tribunal to be a relevant factor in determining whether the Commissioner had properly exercised his discretion and in determining whether Mr Yaghi was a fit and proper person. In fact, the Tribunal emphasised that the offences alone were not a sufficient basis upon which to draw that conclusion.

In conclusion, the Appellant respectfully seeks consideration of:

· the circumstances which gave rise to his contraventions,

· his approach and attitude to his contraventions regarding his future conduct,

· the lapse of time since the contraventions, and

· his changed circumstances regarding the security of any firearms he may possess in the future

and submits that the Tribunal should find that the discretion not be exercised against him.”
15 Mr. Mainstone argued that it is clear from the evidence that Mr. Scattini had a gun safe that complies with the legislative requirements but that he needed to wait for the landlord’s permission before it could be installed. Mr. Scattini was aware of his obligations to safely store his firearms. He weighed up his alternatives and thought that it would be a bigger risk to store the firearms in an unsecured gun safe than to store them in a wardrobe. This was because if there were a break-in and the gun safe was stolen, it would have been less obvious than if the firearms were stolen separately.

16 Mr. Mainstone asked the Tribunal to note that Mr. Scattini did not receive any legal advice in relation to the summonses or the implications of a conviction in regard to his firearms licence. He appeared unrepresented at the hearing in the Local Court. Mr. Mainstone submitted that if Mr. Scattini had been represented it is possible that no conviction would have been recorded against him. The case may not have been proven or the presiding Magistrate may have found the offence proved but chosen to dismiss the charges without proceeding to conviction, pursuant to Section 10 of the Crimes (Sentencing Procedures) Act 1999.

17 Mr. Mainstone conceded that Mr. Scattini’s firearm had been stolen and was now in the community, but he submitted that the evidence shows that Mr. Scattini’s storage facilities now comply with the legislative requirements. He argued that the Tribunal must assess the likelihood of future theft and whether Mr. Scattini presents any threat to public safety. He submitted that it is reasonable for the Tribunal to conclude that presents virtually no risk to public safety.

The Commissioner's case

18 The Police Service’s file was put in evidence and the Commissioner relied on the documents contained within that file. With the exception of the particular circumstances of the case, there is no general suggestion that Mr. Scattini is not a person of good character. Ms. Paterson, for the Commissioner, conceded that Mr. Scattini is a person of good character but argued that it is highly significant that convictions were recorded against him in relation to the breach of the storage requirements. The Commissioner considers that there is a public interest issue to be considered and that the interest of public safety must outweigh any personal interests that Mr. Scattini might have in possessing his firearm. The Commissioner has concerns about Mr. Scattini being the holder of a firearms licence due to his failure to comply with the legislative storage requirements.

19 The Commissioner’s case is essentially that outlined in the reasons provided following the internal review. Those reasons provided in part:

“ D. REASONING PROCESS:

The Firearms Act 1996 ('Act') sets up a scheme for licensing people to possess and use firearms. There are several provisions, which allow the Commissioner to revoke a licence. I have formed the view that the legislative provisions listed above are relevant to your particular case. Further, I have noted the abovementioned issues raised by you in support of your application.

After fully and independently considering all relevant matters I make the following flesh determination.

In 1996, the government enacted "tough new gun laws". One of the underlying principles of that law 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.

The Act does not list the factors, which a decision maker must take into account when deciding whether to revoke a person's licence. In those circumstances the discretion should be exercised in a way, which promotes the principles and objects of the Act as set out in Section 3 of the Act. Further, it has been held that the provision expressing the most relevant object of the Act is s.3(2)(e), which states that one object is to 'ensure that firearms are stored and conveyed in a safe and secure manner.

In considering your request for the return of your firearms licence I have carefully considered the submissions of your solicitor and the facts surrounding your convictions. I have then weighed these against the principals of the Act and have formed the view that as a result of your convictions you have forfeited the privilege of holding a firearms licence.

Firstly, the facts in this matter are that on 31 January 2001, premises at which you were residing were the subject of a break, enter and steal. At these same premises you had stored two registered firearms however, they were not being kept in accordance with requirements. Subsequently, the perpetrators of the break, enter and steal, stole one of your firearms.

As a result of your failure to ensure the safekeeping of your firearms you were charged by police. You appeared before the Sutherland Local Court for the offences of 'Not keep firearm safely' and 'Not prevent Theft/Loss of firearm'. You were convicted of each offence and fined the sum of $500 for each offence.

In relation to the circumstances surrounding the theft of your firearm I also note that you had failed to notify the Firearms Registry of your change in address, another condition imposed upon licensees. This is an important requirement to be met as operational police have an important need to know if premises do or do not house firearms.

In relation to the circumstances surrounding these offences your solicitor submits that prior to 31 January 2001 you had moved into the subject premises and that you had made contact with the Real Estate Agent to seek approval to install a gun safe. As you waited for this approval, you formed the view that it would be safer to keep your firearms within a cabinet inside these premises, with two computer desks placed in front of it. It has been submitted that these premises are fully secured with security screen doors and deadlocked front and rear doors and that all windows of the premises are covered by steel bars. It is submitted that you were of the belief that this was the most appropriate and reasonable short-term safe storage available.

I accept the submissions of your solicitor that the subject premises had some security measures in place and that you could not anticipate that your premises would be broken into. I am also satisfied that you had made some attempt to store your firearms out of view. However, notwithstanding the submissions of your solicitor the fact remains that you knowingly and willingly failed to ensure that your firearms were being stored in accordance with requirements. The need for this requirement to be upheld is conditional upon being issued and retaining a firearms licence. Your actions were negligent to a degree that there is now a firearm on the streets (obtained with considerable ease) and which is in the hands of the criminal element of the community. 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 to the same.

Moreover, it has been held that Parliament has identified the safe storage of firearms as a central and critical objective of the legislation. Further, as is made clear from Part 4 of the Act, Parliament did not leave 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.

In arriving at my decision I have also given substantial weight to the findings of the Sutherland Local Court, whereby the presiding Magistrate elected to convict you of the offences and impose a considerable fine for each offence. A conviction for a firearms offence is considered more serious than other convictions. Similarly, misconduct relating to firearms is more serious than other sorts of misconduct.

I note your solicitor's submission that you "should be punished no further than the convictions and fines imposed by the Court ". However, the revocation of your firearms licence is not further 'punishment' but rather an administrative function in upholding the requirements and provisions of the Act.

I have considered the submission that you are an active member of the Sporting Shooter's Association of Australia (since 1987), that you are a well respected member of the community and that this is the first occasion you have come to notice with respect to an adverse firearms incident. Accordingly, your character is not in question.

In summary, ensuring that firearms are stored in a safe and secure manner decreases the likelihood that they will contribute to an accidental, or deliberate injury or death or, that they may be used by the criminal element in committing serious offences of violence against the community.

The principles and objectives of the Act are to confirm that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety by imposing strict controls on the possession and use of firearms. Section 19(2)(a) and 40 of the Act provide express requirements as to how that objective is to be met in regard to safe storage. That is, a condition of the licence is that the firearms are to be stored safely in the manner prescribed. The ADT has expressly stated that these are fundamental requirements to be upheld by licensees.

Accordingly, for the reasons set out above, I have formed the view you have forfeited the privilege of retaining a firearms licence.”

20 The Commissioner’s delegate referred to the fact that Mr. Scattini has been convicted of fundamental breaches of the Act as a basis for decided against varying the decision to revoke his firearms licence. As a consequence of those convictions Mr. Scattini would be precluded from obtaining a firearms licence for ten years.

21 Ms. Paterson argued that the fact that the firearm was stolen indicates the value of a firearm in the community. Mr. Scattini’s failure to store the firearm safely placed the public at risk, both potentially and actually. In these circumstances there is a legitimate concern in relation to public safety. Ms. Paterson submitted that the Tribunal must consider the risk to the community from the fact that a firearm is loose in the community and has not been recovered. She referred to the decision in the matter of Federici -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 183 which had similar facts to those of Mr. Scattini’s situation. Someone gained entry to Mr Federici's home and certain property was taken including a locked steel box containing three rifles and a shotgun. The steel box was not attached to any permanent fixture as required by the firearms legislation. Mr Federici had contacted his landlord and obtained permission to bolt the safe to the wall and he had bought the bolts on the same day as the burglary. The Deputy President concluded that the Commissioner made the correct and preferable decision to revoke Mr Federici's licence on the ground that he had been convicted of a prescribed offence.

22 Ms. Paterson argued that the Local Court also found the offences proven in Mr. Scattini’s case. The Tribunal is unable to look behind those Local Court findings. She submitted that the fact of Mr. Scattini’s conviction is sufficient to warrant the revocation of his licence. This is not intended to punish Mr. Scattini. It is an administrative function in upholding the requirements and provisions of the Act.

23 Ms. Paterson referred to the decisions of the Tribunal’s Deputy President in Phegan and she argued that Phegan provides that, prima facie, if there is a breach of the storage requirements of the legislation, a licensee will lose their licence unless they can show some good reason why that should not be the case. She submitted that 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. She submitted that the test to be applied is that set out in Ward -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 28. In that matter the Deputy President stated:

“27 One of the objects of the Act, as set out in s 3, is “to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety.” In determining whether Mr Ward is a fit and proper person to hold a licence consideration must be given to the circumstances surrounding his conviction for assault. The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms.

28 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.”

24 Ms. Paterson submitted that the fact that Mr. Scattini has safe storage in his current premises is not a mitigating factor. Mr. Scattini could have and should have ensured that the firearm was safety stored. As a result of his failure, a lethal weapon came into the hands of an unauthorised person. The future risk is to be determined by reference to Mr. Scattini’s proven convictions and the fact that there is now a firearm on the streets and which is in the hands of the criminal element of the community. Mr. Scattini, as a licensee, has obligations. He was aware of those obligations but failed to meet them and in doing so has put the public at risk. The Tribunal should conclude that the decision to revoke Mr. Scattini’s licence was the correct and preferable decision.

Nature of proceedings

25 I note that Ms. Paterson made reference to the decision of the Deputy President in the matter of Phegan as authority for the principle that 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. I considered this argument in some detail in my recent reasons for decision in the matter of Hart -v- Commissioner of Police, New South Wales Police Service [2003] NSWADT 114. I do not propose to repeat that analysis here, however in Hart I expressed the view that these are not adversarial proceedings in which Mr. Scattini carries an onus of proof.

26 Mr. Scattini does not take on the responsibility of having to prove a case, nor does he cause the Commissioner to have to prove a case. Mr. Scattini and the Commissioner are before the Tribunal as parties by virtue of section 67(2) of the ADT Act. The Tribunal makes its own decision in place of the Commissioner’s, and there is no presumption that the Commissioner’s decision is correct.

27 I must consider all relevant circumstances and the subject matter of Mr. Scattini’s contravention and subsequent conviction is a highly relevant consideration. Since breaches of the storage requirements erode the protection of public safety, there would need to be other persuasive considerations before I would be prepared to set aside the Commissioner's decision.

Findings Generally

28 I have considered all of the evidence and the oral argument presented before the Tribunal. In particular I have reached the following findings of fact:

· on 20 April 1999 Mr. Scattini was issued with a Category AB firearms licence for the genuine reason of 'Recreational Hunting/Vermin Control' and 'Target Shooting';

· Mr Scattini is an active member of the Sporting Shooter's Association of Australia and is a well-respected member of the community. He enjoys the sport of hunting and target shooting;

· Mr. Scattini is aware of his responsibilities with respect to the safekeeping of firearms. He has safe storage facilities in his current premises;

· on 31 January 2001 Mr. Scattini’s premises was subject to a break, enter and steal and Mr. Scattini’s firearm was stolen. At the time Mr. Scattini’s firearm not being stored in accordance with the legislative requirements;

· on 17 August 2001 Mr. Scattini appeared before the Sutherland Local Court for the offences of 'Not keep firearm safely' and 'Not prevent Theft/Loss of firearm' where the presiding Magistrate convicted him and imposed a $500 fine for each offence;

· on 10 October 2002 Mr. Scattini’s firearms licence was revoked;

· Mr. Scattini has no prior criminal history or adverse firearms history. He has held firearms without incident since 1992;

· if his licence is restored and firearms returned Mr. Scattini intends to comply with the legislative requirements in regard to the storage of the firearm.

29 The principal issue that I have to decide is whether there is a risk to the safety of the public if Mr. Scattini’s licence is reinstated. Before a licence is issued, the Commissioner must conclude that there is virtually no risk to the public associated with the issue of the licence. In these matters the Tribunal stands in the shoes of the Commissioner and must assess that risk. The likelihood of risk must be assessed by reference to Mr. Scattini’s prior conduct.

30 Mr. Scattini has breached certain provisions of the Act in relation to safe keeping of firearms and he was convicted of those offences. He was aware of his responsibilities with respect to the safekeeping of firearms but chose to not comply with his obligations. As a consequence of his failure to store his firearms in accordance with the legislative requirements there is now a firearm on the streets and which is in the hands of the criminal element of the community. Against this must be weighed his undisputed good character; his history of firearms use that is incident free but which is overshadowed by this failure to comply with the legislative requirements regarding storage of firearms; and his undertaking as to future conduct.

31 Regrettably, the outcome of Mr. Scattini’s breach was extremely serious. One of the underlying principles of the Act is the improvement of public safety by promoting the safe and responsible storage of firearms. Ensuring that 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 the safe storage of firearms as a central and critical objective of the legislation. Those principles and objectives have been reinforced in numerous decisions of this Tribunal. Mr. Scattini’s offences must be viewed with reference to them. Parliament did not leave 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.

32 In this case it could not be said that Mr. Scattini has acted in complete disregard of the statutory requirements to safely store his firearms. He has clearly taken steps to obtain a licence and to have his firearm registered. He has also obtained appropriate storage for the firearm. Nevertheless, he made a conscious decision to not comply with what he knew to be his obligations.

33 The fact remains that Mr. Scattini was convicted of offences relating to not keeping his firearm safely. A direct result of his failure was the theft of the firearm. It is conceivable that far more severe consequences could still result from that theft. The fact that Mr. Scattini usually stored his firearm safely does not diminish the gravity of that fact.

34 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. On the evidence presented I accept that Mr. Scattini was aware of the statutory obligations. Nevertheless, his actions suggest that he did not fully appreciate the importance of strict observance of those obligations. Having weighed the evidence, it is my view that that the gravity of Mr. Scattini’s offences and the events of 31 January 2001 outweigh the other relevant factors.

35 I appreciate that this decision may well lead to harsh consequences for Mr. Scattini in that a mandatory refusal will result if he should reapply for a firearms licence within the near future. In any event, Mr. Scattini would have faced this consequence when the licence otherwise expired in June 2004. I also note that this consequence would be significantly different had the Local Court proceedings not lead to a conviction. This is an unfortunate outcome for Mr. Scattini, however I am unable to look behind the Local Court findings and the interest of public safety must outweigh any personal interests that Mr. Scattini might have in possessing his firearm.

36 I cannot as yet be satisfied that sufficient time has passed since that incident for the public to be comfortable with Mr. Scattini holding a firearms licence. It follows in my view that the correct and preferable decision is to revoke Mr. Scattini’s firearms licence. Accordingly I affirm the Commissioner's decision.

Orders

The Commissioner’s decision to revoke Mr. Scattini’s Category AB firearms licence is affirmed.