Sharpe v Commissioner of Police, New South Wales Police Force

[2023] NSWCATAD 178

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Sharpe v Commissioner of Police, New South Wales Police Force [2023] NSWCATAD 178

Hearing dates:

27 March 2023

Date of orders:

11 July 2023

Decision date:

11 July 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J McAteer, Senior Member

Decision:

(1) The decision to refuse the Applicant’s Category AB Firearms Licence is set aside.

(2) The Respondent is to grant the applicant a Firearms Licence on the terms sought in the 17 May 2022 application.

Catchwords:

ADMINISTRATIVE LAW - Firearms –– objects of legislation – public interest – public safety – credibility of witness – seriousness of breaches - honesty

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Firearms Regulation 2017

Cases Cited:

Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11

Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657

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

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16

Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409

Jameson v Commissioner of Police, NSW Police Force [2019] NSWCATAD 25

Keegan-Jaques v Commissioner of Police [2017] NSWCATAD 146

Kocic v Commissioner od Police NSW Police Force [2014] NSWCA 368

Legallant v Commissioner of Police, NSW Police Force [2023] NSWCATAD 47

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

Newman v Commissioner of Police NSW Police Force [2018] NSWCATAD 17

Rose v Commissioner of Police (No 2) [2022] NSWCATAD 26

Uzelac – v Commissioner of Police Ministry of Police [2003] NSWADT 226)

Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28

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

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Victor Stanley Sharpe (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Counsel:
Applicant: T Lowe

Solicitors:
Mainstone Lawyers (Applicant)
Bartier Perry Lawyers (Respondent)

File Number(s):

2022/00314769

Publication restriction:

Nil

Reasons for decision

What these proceedings are about

1. These proceedings concern the Commissioner of Police’s decision to refuse the applicant’s Category AB Firearms licence on 17 August 2022. The refusal arose following a fresh application after an earlier refusal (and Internal Review), which itself was preceded by a revocation of the licence by the Commissioner on 22 September 2020.

Introduction

2. The applicant in these proceedings is Mr Victor Sharpe (Mr Sharpe). The respondent is the Commissioner of Police NSW Police Force (the Commissioner). The Commissioner’s delegate in dealing with the application for a Category ABC Firearm’s Licence formed the view that it was not in the public interest for Mr Sharpe to hold a Firearms Licence.

3. The delegate set out Mr Sharpe’s licencing history in the decision beginning in 2016 and referred to the basis for a revocation of his licence in 2020 following an attendance for a domestic incident, which uncovered some breaches of the Firearms Regulations.

4. Following the revocation there were various reapplications for the licence once the revoked licence had expired in February 2021. In all of these Mr Sharpe had been unsuccessful. Prior to the decision under review earlier decisions and internal reviews were conducted and made on: 31 May 2021 (refusal), 27 September 2021 (decision affirmed in internal review), 17 August 2022 (refusal of new application).

5. In respect of the most recent decision of the Commissioner which gives rise to these proceedings the delegate determined that there had been no change in Mr Sharpe’s circumstances since the earlier determinations and as a result appears to have decided that there is no basis when deciding the new matter afresh to arrive at any different conclusion than earlier adjudicators.

6. The delegate (as per the previous delegates) cited s 11 (7) of the Firearms Act 1996 as a basis to refuse the licence application as granting Mr Sharpe a Firearms Licence would not be in the public interest.

Background

7. Mr Sharpe’s firearms licensing history is more detailed than that provided by the Commissioner in their refusal decisions and the documents filed under s 58 of the Administrative Decisions Review Act 1997 (the ADR Act). These matters were clarified in the weeks prior to hearing when the Commissioner filed further material relevant to the proceedings ultimately received as Exhibit ‘R-2’.

8. It appears from Mr Sharpe’s own evidence that he initially held a Firearms Licence from July 1996 (a shooters licence). It appears that on 8 January 1998 Mr Sharpe was issued with a Category AB Firearms Licence under the newly proclaimed Firearms Act 1996. As a result of this event the earlier Shooters Licence was subsequently cancelled (it would appear administratively) on 12 January 1998.

9. On 24 October 2001 Category C was added to Mr Sharpe’s AB Licence allowing certain self-loading rifles for special needs established to the Commissioner’s satisfaction such as being a primary producer.

10. In April 2003 Mr Sharpe’s Category ABC licence was revoked following charges of murder and dangerous driving occasioning death and other serious traffic offences. This incident involved Mr Sharpe running off the road into a pedestrian with fatal consequences. He was convicted of aggravated dangerous driving occasioning death, and sentenced to three years in prison with three years parole.

11. Mr Sharpe’s sentence concluded on 26 May 2010 and he applied for and was granted a Category AB Firearms Licence on 5 January 2011. In support of that application was a medical report concerning alcohol use indicating a proposal to abstain from alcohol use as alcohol had been a factor in his prior offending. A further medical report was requested and his licence issued.

12. On 25 February 2016 Mr Sharpe’s licence was renewed on application on the basis of a genuine reasons of recreational hunting / vermin control and primary production. At the time of his renewal twelve firearms were registered to Mr Sharpe.

13. Arising from the domestic incident in December 2019 referred to at [3] above, Mr Sharpe’s Firearms Licence was suspended on 30 December 2019 due to apparent breaches of the Firearms Regulations. Police identified one unregistered firearm (not registered to Mr Sharpe) as well as the unregistered firearm being stored in an ‘unapproved safe’. The unidentified firearm (the 13^th firearm located on the property), was stored in a locked wooden cabinet being an unapproved storage receptacle. Other breaches were identified being two small containers of ammunition located within the wooden cabinet with the 13^th firearm.

14. Police issued a Court Attendance Notice (CAN) to Mr Sharpe concerning two beaches of the Firearms Act concerning possessing an unregistered firearm and not keeping that firearm safe. Mr Sharpe pleaded guilty to those offences and was issued with a 12 month conditional release on each offence when the matter went before the Local Court in April 2020. As result of the Court outcome the Commissioner revoked Mr Sharpe’s firearms Licence. In effect this event begins the sequence of events where Mr Sharpe has to date unsuccessfully sought to either have his licence reinstated or a fresh licence issued. He has been unlicensed and unable to possess or use firearms since the initial suspension on 30 December 2019 to date.

Jurisdiction

15. As noted at [6] above, the Commissioner has refused Mr Sharpe’s Firearms Licence application on the basis of s 11 (7) of the Firearms Act 1996 which provides:

11 General restrictions on issue of licences(cf 1989 Act s 25, APMC 4, 5, 6)

(1) The Commissioner may issue a licence in respect of an application, or refuse any such application.

(2)..

(3)..

(4)..

(5)..

(6)..

(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.

16. Section 75 of the Firearms Act provides that a person aggrieved by any of the seven listed actions of the Commissioner can apply to the Tribunal for administrative review of that decision. The first matter listed at s 75 concerns the refusal of a licence. Relevantly the section provides:

Part 8 Applications to Civil and Administrative Tribunal

75 Administrative reviews by Civil and Administrative Tribunal of certain decisions

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

(a) the refusal of or failure by the Commissioner to issue a licence or permit (other than a permit in respect of a prohibited firearm) to the person,

(b) a condition imposed by the Commissioner on a licence or permit issued to the person,

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

(d)..

(e)…

(f)…

(g)…

(Emphasis added)

17. The Tribunal’s powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (the ADR Act), which provides:

(1) In determining an application for an administrative review under this Act of an administratively 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 legislation on the administrator who made the decision.

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

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

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

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

18. The Tribunal has jurisdiction under the Firearms Act as noted at [15] and [16] above.

19. As noted from the section above, an application under s 75 of the Firearms Act is an administrative review. The Tribunal’s function on review under section 63 of the ADR Act is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.

Administrative Review by the Tribunal

20. The parties agree that Mr Sharpe filed his application for Administrative Review on 21 October 2022. An Internal Review was sought for the most recent refusal (from 17 August 2022) on 8 September 2022. As no Internal Review decision was forthcoming on or before 29 September 2022 the matter became a deemed refusal.

21. Mr Sharpe had 28 days from the date of the deemed refusal to apply to the Tribunal for Administrative Review. His application to the Tribunal was lodged on 21 October 2022 prior to time expiring on 27 October 2022.

22. On those calculations both parties agreed that his application to the Tribunal was lodged within the time allowed following the deemed refusal.

What issues do these proceedings raise for determination?

23. On my assessment the issues are as set out by the Commissioners delegate:

• Is it in the public interest for the applicant to hold a licence?

24. This issue will be determined on the basis of factual findings in this review arising from a consideration of the evidence and law.

Applicant’s written evidence

• Exhibit ‘A-1’. Statement of Victor Sharpe dated 7 February 2023.

• Exhibit ‘A-2’: Supplementary Statement of Victor Sharpe dated 16 March 2023.

• Exhibit ‘A-3’ Statement of I Wright dated 16 March 2023.

• Exhibit ‘A-4’ Copies of : Local Court firearms charges submissions on sentencing for applicant dated 15 April 2020, letter of applicant on sentencing 17 April 2020, letter of K Cordy 25 March 2020 re: sentencing. Letter R Gordon 10 February 2020 re: sentencing, letter P Azzopardi (undated) re: sentencing, letter H Day and G Day dated 16 January 2020 re: sentencing, letter I Martin 14 February 2020 re: sentencing, letter R White dated 7 February 2020 re: sentencing, letter D Kirby 3 January 2020 re: sentencing, letter B Johnston dated 5 February 2020 re: sentencing, report of Dr R Allan dated 27 February 2020, report of Dr R Allan dated 14 April 2020, transcript of sentencing Dubbo Local Court 22 April 2020 R v Sharpe.

Respondent’s written evidence

• Exhibit ‘R-1’ Documents filed under s 58 ADR Act (158 pages) filed 14 December 2022.

• Exhibit ‘R-2’ Supplementary Bundle (54 pages) filed 14 March 2023.

25. Both parties were legally represented and provided detailed written submissions and made oral submissions at hearing. Mr Sharpe was subject to cross-examination at hearing. No other witness was called or required for cross examination at hearing.

Mr Sharpe’s evidence at hearing

26. In evidence in chief Mr Sharpe adopted his statements Exhibit A-1 and Exhibit A-2 and stated that they were true and correct to the best of his knowledge.

27. In cross-examination Mr Sharpe was asked about the serious traffic related incident in 2002 where persons died and for which he was sentenced to a term of imprisonment.

28. He confirmed that his sentence including parole was six years and that he was disqualified from driving for five years. He confirmed that the vehicle collided with two pedestrians following a verbal and physical altercation at a birthday party out in the open. The two pedestrians left the altercation on foot and Mr Sharpe drove the vehicle soon afterwards intoxicated. Mr Sharpe denied that he made any threat during the earlier altercation to kill either of the pedestrians.

29. The applicant was questioned about his licencing history (as set out above) and was taken to page 25 of Exhibit ‘R-2’ which was a copy of his first licence application after being released from his parole conditions following the 2002 incident. Under Section H the first question asks: ‘Have you in NSW or elsewhere (a) ‘Been refused or prohibited from holding a firearms licence, or permit or had a firearms licence or permit suspended, cancelled or revoked?’ On the form reproduced in ‘R-2’ Mr Sharpe had answered ‘No’. In his oral evidence Mr Sharpe said that he was not aware that his earlier licence had been revoked. He was dealing with unrelated serious charges for which he spent some years in custody.

30. Mr Sharpe however agreed with the proposition that he was aware that his licence had previously been suspended but he still answered no to that question. He admitted that the answer was false on the record but said that there was a reason for that being the background and the more serious matters that he had been dealing with.

31. In respect of the firearms charges arising from the police attending on a domestic incident in December 2019, Mr Sharpe said that the matter did not really involve him and was an incident between his adult daughter and his partner. He was outside sitting in his vehicle. When Police attended as they knew he was a registered firearms user and that irrespective of his lack of involvement there were guns on the property when the domestic call out had occurred, they had asked Mr Sharpe to show them the firearms.

32. The extra or 13^th firearm was his employer’s firearm. Mr Sharpe said that it had been in his possession for two years as the property was the employer’s property and would use it at the station (the property) when he was present there.

33. At this point in cross examination there was an issue about whether Mr Sharpe had told officers that he was returning the employer’s firearms to him. Mr Sharpe said that he told the Police Officers that evening that he was intending to return the firearm to it’s owner his employer. It was suggested to Mr Sharpe that the COPS Event of the incident contained in the s 58 material (Exhibit ‘R-1’) does not make any reference to the returning of the firearm issue.

34. Mr Sharpe said that the firearm was only on the property where he resided for one week before the Police visit. He clarified that it had been on the Station (the broader property) for two years but had only been at his residence for one week. He said that the owner (Coddington) wanted the firearm stored in a gun safe and the only place that there was a gun safe on the property was in his residence. The Commissioner (and Tribunal) was referred by Mr Sharpe to the submissions that his Solicitor made on the circumstances of the matter to the Local Court in 2020 (Exhibit ‘A-4’). Mr Sharpe said that he knew that the firearm as not registered.

35. Mr Sharpe was questioned about the subsequent revocation of his 2016 issued licence following this issue which resulted in the CANs being issued for firearms breaches. He was questioned specifically about an entry on his May 2021 licence application (following the lapsing of his licence on 25 February 2021 which had been suspended on 30 December 2019 and revoked in 2020 following the inspection).

36. The entry on page 118 of the s 58 documents where he provides details on the electronic form reads as follows:

I was transporting my employers firearm and was pulled over by the police who completed a computer scan on the firearm which was not registered at all which I had no knowledge of. The outcome of this was that I was found guilty and no conviction was recorded. I was placed on a 12 month good behaviour bond which expired on 21/04/2021.

37. Mr Sharpe confirmed that this was the same incident as the inspection after the police attended the domestic because of the Court outcome reference. However he agreed that the circumstances were recorded differently.

38. Mr Sharpe was asked about earlier NCAT proceedings which were withdrawn prior to hearing. He confirmed that he commenced proceedings in September 2021 but withdrew then upon receiving some legal advice which he said was privileged.

39. Mr Sharpe was questioned further about the purported traffic stop referred to in his application form. He said there probably would have been an opportunity to raise that matter in the earlier 2022 proceedings concerning the 2021 licence application but the question had never been put or raised. With him prior to withdrawal. In addition it had not been previously raised in these proceedings.

40. At [4] of Exhibit ‘A-2’ Mr Sharpe states:

4. The respondent refers to the ‘2021 application’. I sought the assistance of a staff member from the Roads and Maritime Services in completing that application because I found the process and the questions difficult particularly given my history’,

41. It was put to Mr Sharpe that this evidence was merely given to explain the inconsistency between the traffic stop entry on the application and what really took place. Mr Sharpe denied that he ‘did not seek assistance from RMS staff’ and said that his statement is true. He said that he ‘dealt with a young lady’. He did this in part because it was now a computer based application and that ‘I’m not really computer literate. She was typing on the monitor’.

41. Mr Sharpe was questioned about the Psychological Assessment report from July 2021 which was tendered at pages 145-149 of the s 58 documents. He said that he told the psychologist about the 2002 serious motor vehicle incident and other relevant matters in his criminal past but is unsure as to why they were not recorded in the history given on page 3 of the report. (Other than the 1981 offence and the 2002 serious offences, all matters resulted in acquittals with the 2020 firearms matters resulting in no conviction being recorded). The report refers to a lack of criminal charges relating to inciting violence.

42. Mr Sharpe agreed that he did not tell he expert that he was only permitted to possess one Category C firearm. There were also inconsistencies in what is recorded in the report about knowing that the firearm was unregistered and the recurring issues around the evidence relating to transporting, what constituted the residence and what constituted possession. Mr Sharpe’s disclosure to the Psychologist appears to indicate that by having the firearm at his residence, he was in the process of ‘transporting it’. At page 4 the following is recorded:

Victor reported to police he was just transporting the gun as he did not want to leave the gun unattended when he left the property. Police reported that Victor should have handed the gun in to them, however Victor explained that he did not know it was unregistered. Victor was still working for the Cottington’s but on workcover leave. Victor alleges that officer Grahame said he should just have left the gun on the Cottington property, however Victor alleges that is an irresponsible thing to do.

44. Mr Sharpe denied a suggestion by the Commissioner that he suffered depression and suicidal thoughts. He said in respect of alcohol he has an occasional drink, a glass of whisky once a fortnight or so.

45. In re-examination Mr Sharpe was asked about what happened with the murder charges. He said that they did not proceed. Instead he was convicted of two counts of dangerous driving causing death. In respect of his licence applications in 2010, 2015 and 2016 Mr Sharpe said that he was dealing with tragedy in his life. He said that he did not intentionally seek to mislead anyone.

46. The Tribunal asked a number of questions of the applicant consistent with its powers under s 38 of the NCAT Act. When asked about completing the 2021 application at RMS and how long he was engaged with the staff member, Mr Sharpe said that the whole process took hours not five minutes to complete.

47. In order to understand the repeated references to ‘the Station’ and ‘the residence’ in his evidence the Tribunal inquired into the size of the relevant properties. Mr Sharpe said that ‘Mundiwa’ which is where the Homestead referred to in the evidence and where the 13 firearms were stored and located, was 42,000 to 45,000 hectares. He said that the primary homestead area was about 300 acres out of that amount.

48. In respect of his knowledge about his employer Mr Sharpe said that he did not know whether Mr Coddington was licenced to use firearms at the relevant time or not.

49. The legal representatives were invited to raise any questions arising from the Tribunal questioning. His Counsel asked why he answered no to Question H (a) on the 2010 form. Mr Sharpe said that Dianne from the Firearms Registry said that there was no record of any suspension or refusal etc. and that was why he answered no.

50. Mr Sharpe denied that he gave that answer on the form because he thought that he would get away with it. In respect of the 2021 application at RMS Mr Sharpe explained the lack of checking of the entry in two ways. He said that after one and a half hours he had to leave that office in order to collect or pick up a sick relative. He also said that as it was an electronic form which was submitted, he did not read or reread the entry as he had no accessible copy until it was filed by the Commissioner in the earlier Tribunal matter.

Commissioner’s evidence

51. The Commissioner relied upon the material outlined at [24]. The Commissioner did not rely on any witness evidence and did not seek to cross examine or test further the evidence of any of Mr Sharpe’s witnesses other than Mr Sharpe himself. The Commissioner in adopting this course indicated that they would make submission around weight that should be attributed to much of the applicant’s witnesses evidence.

52. The Commissioner relied on the s 58 material and the supplementary bundle as well as written and oral submissions.

Applicant’s submissions

53. Mr Sharpe relied on written submissions prepared by his Solicitor and his Counsel, who also made oral submissions at the conclusion of the evidence.

54. In oral submissions it was submitted that the Tribunal should not significantly focus and scrutinise Mr Sharpe’s honesty because he is an inarticulate and unsophisticated person.

55. It was submitted that Mr Sharpe is trying his best to be a witness of truth. It was submitted that there is not enough evidence to find that Mr Sharpe is deliberately dishonest. Reference was made to the case of Legallant v Commissioner of Police, NSW Police Force [2023] NSWCATAD 47 where the Tribunal had reinstated the licence notwithstanding that firearms stored in the boot of a car parked on a driveway had been stolen.

56. Reference was also made to the case of Jameson v Commissioner of Police, NSW Police Force [2019] NSWCATAD 25. The circumstances giving rise to the initial suspension and subsequent revocation were set out by the Tribunal at [3] – [4]. Like Legallant the firearms had been stolen from the boot of a car and the Tribunal reinstated the licence. The licence was reinstated by the Tribunal notwithstanding that many of the firearms had not been recovered. At [3] – [4] of Jameson the Tribunal observed:

3. The circumstances giving rise to the revocation were that during the night of 24 November 2017, a thief entered the applicant’s open garage, opened the boot of his unlocked vehicle and stole his five handguns, four of which were in a locked metal box in the boot. The wrongdoer, who was well known to police, was subsequently apprehended and charged, but two of the five stolen pistols remain unaccounted for. On 29 November 2017 police attended at the applicant’s residence, suspended his firearms licence and impounded three long arms that were in his possession.

4. On 30 January 2018 at Wollongong Local Court the offence of failing to keep a firearm safely under s 39 of the Firearms Act was found proven against him. No conviction was recorded but he was required to enter into a bond to be of good behaviour for six months under s 10 of the Crimes (Sentencing Procedure) Act 1999. The applicant is aged 71 years and has never previously been charged with any offence.

57. Counsel for Mr Sharpe referred to the ‘Uzelac test’ as set out in Jameson and said that it should apply in the current proceedings. The Tribunal in referring to Uzelac (Uzelac – v Commissioner of Police Ministry of Police [2003] NSWADT 226) noted at [63] that:

63. In Uzelac, another case in which a licence revocation decision was set aside, Acting President Hennessy DP set out the principles applying to licence revocations, particularly involving safe storage breaches, in a passage that has been widely approved and followed:

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].

58. Whilst the current matter is not a revocation review the genesis of the matter arises from the suspension on 30 December 2019 and the revocation the following month. In practice the basis for refusal by the Commissioner in subsequent applications concerns the revocation basis coupled with the finding of offence proven subsequently at Court. Like Jameson the background matters relate to storage and compliance with the Regulations.

59. Counsel submitted that like Uzelac one of the considerations, the reasons for having a firearms licence, was compelling. Mr Sharpe is a primary producer and provided significant written evidence about his need to have possession and use of firearms.

60. In respect of the need to assess the likelihood of reoffending Counsel submitted that Mr Sharpe was honest on his only reoffending example since the very serious matter in 2002. His actions around firearms use and possession were honest as he took the Police to the 13^th firearm of his own choosing, cooperated with Police and plead guilty to the CAN matters.

61. In written submissions Counsel referred to the cases cited above but also submitted that the Tribunal could be guided by the approach of the Magistrate in determining the seriousness of the firearms breach. Submissions were made concerning Mr Sharpe’s need for a licence and the lesson that he learnt from the 2019 breaches and 2020 proceedings, not just the consequences on him personally but also a ‘powerful lesson’, in effect a reminder and wake up call.

62. Written submissions referred to the lack of offending in the intervening years (albeit currently without access to firearms), but also noting that Mr Sharpe was the one who alerted Police to the issue and that the risk of him ever again taking possession of a further unregistered firearm would as a result of the incident be minimal.

63. Referencing Jameson and Legallant Counsel submitted that Mr Sharpe but for the 2019/2020 breaches had an unblemished history of firearms use and possession spanning close to thirty years, albeit with periods where he was unlicensed. The other 12 firearms (all owned and registered to Mr Sharpe) were stored safely and securely on the property. The circumstances of alerting Police to the issue were in part on point with the facts in Jameson. Reference was also made to Mr Sharpe’s contrition and remorse, his early plea of guilty and assistance to Police during the incident.

64. Reference was also made to the sentencing remarks for the offence, noting that little or no weight was placed on his earlier offending due to then significant passage of time, the positive matters referred to in the Police facts, and the circumstances of the matter being explainable (albeit contrary to law) and that an attempt to secure the firearm was made, but not to the sufficiently high degree required by the Legislation.

65. Counsel also submitted that it could not be established convincingly that Mr Sharpe was a dishonest person. It was submitted that but for Mr Sharpe’s honesty it seems highly unlikely that he ever would have been detected breaking the law.

66. Counsel submitted that Mr Sharpe complies with the law in a manner which would give the Tribunal satisfaction in respect of public safety should he be granted a licence. Since the serious offences of 2002 Mr Sharpe had only received a loss of four demerit points traveling long distances in rural western NSW. In respect of his mental health Mr Sharpe relies on Ms Juchau’s report of 16 July 2021 and submitted that the author is qualified to provide the opinion in the report.

Commissioner’s Submissions

67. The Commissioner made oral submissions at the conclusion of the evidence and referred to their written submissions dated 2 March 2023.

68. The Commissioner submitted that there were concerns that the unregistered firearm had been held for a number of years (possibly two years). The Commissioner submitted that this distinguishes Mr Sharpe’s case from the cases of Jameson and Legallant. The Commissioner noted that the criminal history spanned many years even if there were only three suites of offending (the 1981 break and enter and malicious injury offences from when Mr Sharpe was 19 years of age, the serious 2002 offences for which he was incarcerated and the 2019/2020 firearms offences).

69. In respect of his applications for licences the Commissioner in oral submissions noted the incorrect information provided by Mr Sharpe on three occasions and submitted that he knew that the information was incorrect. He was aware that his licence had been suspended and yet he chose to answer ‘no’ on each occasion. In respect of the 2021 licence application at RMS the Commissioner submitted that he had spent 90 minutes with the officer which is difficult to accept.

70. The Commissioner also submitted that in the Local Court matter Mr Sharpe’s Solicitor had submitted that his client knew that the (13^th) firearm was unregistered. The Commissioner submitted that prior to the hearing Mr Sharpe had not sought to address the circumstances of the 2021 application (at the RMS office).

71. The Commissioner also submitted that Mr Sharpe told different things to the psychologist about the firearm in respect of whether it was registered or unregistered. The Commissioner submitted that the RMS evidence by Mr Sharpe was fanciful especially when contrasted with the evidence of what the Registered Psychologist report states.

72. The Commissioner submitted that there were three instances where the answer to question (H) (a) was incorrect. The matters raised by Mr Sharpe (as set out at page 133 of the s 58 documents) refer to the withdrawal of his earlier application to the Tribunal because the information that he had been provided (the traffic stop / transporting firearms information) was incorrect. The Commissioner submitted that again there had been no attempt to correct (those inaccuracies) by Mr Sharpe in the intervening 13 months prior to this hearing. This it was submitted caused the Commissioner to have significant concerns about Mr Sharpe’s honesty and the lack of candour in his application and these proceedings.

73. In respect of the medical evidence the Commissioner submitted that little weight could be given to the reports because Ms Juchau had only seen Mr Sharpe on one occasion, the background history given to her is provided entirely by Mr Sharpe, and the views of Dr Katsogiannis (from 2002) had not been revealed to Ms Juchau nor had the instances of depressive episodes with suicidal ideation been revealed. Further submissions concerned the failure to disclose the 1981 matter concerning violence and that this illustrated that Mr Sharpe was engaged in minimising behaviour.

74. The Commissioner submitted that the firearms breaches in 2020 are not trivial and that Mr Sharpe had provided no reason to explain why the (13^th) firearm was not stored safely.

75. The Commissioner concluded her oral submission by reference to a lack of candour not just before the Tribunal and the current application, but also in each application for a licence. For this reason the Commissioner submitted that the Tribunal could not be satisfied that Mr Sharpe would have returned the 13^th firearm to Mr Coddington.

76. Reference was also made to the contemporaneous medical notes (received as part of Exhibit ‘R-2’) and submissions were made that these to an extent contradicted what Mr Sharpe told authors in reports. It was suggested by the Tribunal that such past matters would need to be considered in the context of what weight to apply but the Commissioner submitted that again the matter went to the candour of Mr Sharpe in giving his evidence.

77. In written submissions the Commissioner referred to the often cited cases dealing with fitness and propriety as well as the public interest when considering matters in a licencing regime.

78. The Commissioner relied on the often cited cases of Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657, Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16, Livadaru v Commissioner of Police NSW Police Force [2008] NSWADT 160 and Kocic v Commissioner od Police NSW Police Force [2014] NSWCA 368.

79. The Commissioner also referred to other cases to illustrate how the objects of the Firearms Act should be applied to matters whereby potential public safety matters were and issue.

80. The Commissioner in written submissions focused on the fact that Mr Sharpe had never properly explained why he had retained the 13^th firearm, and also why it was not stored in an approved storage receptacle. This was submitted to be another example of a lack of candour. The Commissioner submitted that these matters were neither trivial or excusable and as a result the Tribunal could not be confident that Mr Sharpe’s firearms would be stored safely in future if granted a licence.

81. Reference was also made to Police observations that Mr Sharpe was intoxicated when they attended the domestic incident (which did not involve Mr Sharpe). This was characterised as Mr Sharpe being intoxicated at the time of his offending, as the attendance and search as a precautionary matter arising, occurred on that day. In effect the breach was in place from the moment Mr Sharpe took possession of the firearm with the second breach relating to when he placed it in the non compliant storage cabinet.

82. The relevant issue around alcohol being that some years earlier Mr Sharpe had told a clinician that he would no longer drink and this was a factor relied upon by the Commissioner in determining to grant a licence in 2010 noting the circumstances of the 2002 offending.

83. Reference was made to Keegan-Jaques v Commissioner of Police [2017] NSWCATAD 146 at [79] in respect of not attributing weight to the character references.

The references did not deal with the issue for consideration by the Tribunal – that is was it in the public interest for the Applicant to continue to hold a firearms licence. As a result they did not assist the Tribunal in deciding this issue.

84. I note however that many of the references deal with the 2020 prosecution and are cognisant (on their face) of the public safety imperatives around firearms use, and some references refer to varying extents Mr Sharpe’s criminal past and his firearms breaches before the Court.

85. The Commissioner also made reference to the serious nature of the firearms offences by reference to the Firearms Act. Section 7 provides:

7 Offence of unauthorised possession or use of pistols or prohibited firearms(cf 1989 Act s 5, APMC 3)

(1) A person must not possess or use a pistol or prohibited firearm unless the person is authorised to do so by a licence or permit.

Maximum penalty—imprisonment for 14 years.

Note—

Reference to a pistol includes a prohibited pistol.

(2) Without limiting the operation of subsection (1), a person who is the holder of a licence is guilty of an offence under this section if the person—

(a) uses a pistol or prohibited firearm for any purpose otherwise than in connection with the purpose established by the person as being the genuine reason for possessing or using the pistol or prohibited firearm, or

(b) contravenes any condition of the licence.

(3) …

The 13^th Firearm was considered a prohibited weapon in part because it was a Category C firearm and was unregistered, notwithstanding Mr Sharpe being licenced to possess and use a defined number of such firearms.

Consideration

86. The decision under review is based upon the notion that Mr Sharpe having access to firearms would be contrary to the public interest.

87. I note that Deputy President Hennessy observed in the case of Livadaru v Commissioner of Police [2008] NSWADT 160 that in reference to the public interest at [54]:

In considering the public interest, regard must be had to the underlying principle of the Act. ….

88. I note that the underlying principle of the Act concerns public safety.

89. In respect of the public interest I note that such matters include public protection, public safety and public confidence in the administration of a licensing system. The Firearms Act 1996 identifies a purpose to deal with public safety at s-3 (1) (a) of the Act.

90. Section 3 of the Firearms Act 1996 provides:

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

91. It is well understood when reviewing these decisions in the Tribunal that these principles and objects provide clear guidance as to how the provisions under the Act are to be administered as per the reference to Livadaru at [87] above.

92. The Appeal Panel of the ADT in the case of Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16 discussed how the Tribunal should approach matters of public interest in licensing regime reviews.

28. As noted in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 [at 33] the 'public interest' is:

. . .

33. The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system. In this case the public interest case was a very strong one. The public would, we believe, be quite concerned that a man with a serious history of violence, including violence using weapons, for which he served several years' imprisonment might now be entrusted with a pistol.

93. In the case of Rose v Commissioner of Police (No 2) [2022] NSWCATAD 26 the Tribunal observed that the ‘burden’ that an applicant is required to overcome on this issue is not taken to be insurmountable. At [56] when referring to the case of Martin, the Tribunal observed:

1. It is not the case, as indicated in Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] to [66], that an Applicant is required to discharge an almost impossible burden of proving a near-absolute negative.

2. Rather, as stated in Webb at [32] when considering the question of public safety:

"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".

94. In my view Mr Sharpe’s most significant issue is how I should assess his candour in respect of his honesty to both the Commissioner and the Tribunal. The issue of the firearms breaches are also matters requiring some consideration. However taking these matters as a whole, as I am required to do, I place less weight on his teenage offending and his significant crimes in 2002. The reason for this is threefold. First there is the significant passage of time since those offences. Second the nature of those offences (noting the extreme seriousness of the 2002 offending and subsequent incarceration). The offences whilst showing a general disregard for the law, are mitigated by the passage of time because they are unrelated to any great degree on any other basis to assessing Mr Sharpe’s ability to exercise continuous lawful control of firearms. Third, there is the lack of any offending (other than the storage and unlicensed 13^th firearm issue) since 2002. This matter was recognised by the Magistrate in affording Mr Sharpe a section 10 conditional discharge with no conviction recorded.

95. In respect of the version of events concerning the inspection in December 2019, by the Police account Mr Sharpe was intoxicated, which may explain inconsistencies in his version for having the 13^th firearm when compared with versions given at a later time. The position that he did not own and in that sense possess that firearm is a consistent aspect of all of his evidence. The contradictions arise in the context he provides for this state of affairs, and what he means by references to transporting the firearm, in the process of reuniting it with its owner.

96. In respect of the evidence about the 2021 application with the assistance by the RMS officer, the Commissioner characterised Mr Sharpe’s evidence in this matter as ‘fanciful’. I disagree. Mr Sharpe’s evidence was to the effect that he did not have control over the process because he was unable to engage in it independently. His lack of experience with digital platforms and computers was not challenged by the Commissioner. Unlike his earlier paper based applications whilst Mr Sharpe retained responsibility for the accuracy and completeness of his answers, it is accepted that once the matter was submitted electronically he was unable to further review it and correct any inaccuracy. If he was required to complete the application under his own hand and sign and date the form (also under his own hand) his explanations would hold little weight, noting that Mr Sharpe is literate. However in the absence of any evidence to the contrary I broadly accept his evidence on this matter having taken into account the apparent difficulty Mr Sharpe had in giving evidence before the Tribunal. He was neither a skilled or comfortable witness, but I did not ascertain or detect any deliberate untruthfulness or evasiveness in his answers, more of a difficulty in admitting certain things when required.

97. In that regard I also accept as credible Mr Sharpe’s explanation about his earlier paper based entries at H (a) where his evidence was that the person he spoke to in the Registry could find no records to the contrary of that position. I also note Mr Sharpe’s evidence that his situation (referring to his history) was somewhat complicated.

98. In respect of his firearms offences I take into account the Magistrate’s views when passing sentence and note that no conviction was recorded irrespective of the serious matter some 20 years prior and the seriousness of the current charge. The Court took into account the context and circumstances of Mr Sharpe’s work and the nature and circumstances of the breach, as well to some extent his personal circumstances at the time.

99. Whilst his traffic record since 2002 counts in his favour, for five years of that period he was prohibited from driving. I note that he is not being adjudged as not being fit and proper to hold the licence, but that having a licence would be contrary to the public interest.

100. Whilst not the main basis for the decision for review before the Tribunal, the notion of ‘fit and proper’ is often referred to in the lead case of Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 and the various ADT and Tribunal cases that have relied on Bond. The case of Bond provides the general principle that fitness and propriety are not to be narrowly construed or confined and can extend to any aspect of fitness and propriety that is relevant to the public interest.

101. This position is consistent with the approach that the cases outlined above have set out concerning applying the concepts in a broad manner to the available evidence and having regard to the objects and purpose of the regime. In this instance the regime is designed to protect the public as a primary consideration and for this reason under the Firearm Act access to and use of firearms is not a right but a privilege.

102. As previously observed the legislation and precedents indicate that the discretion is to be applied consistent with the purpose of the Firearms Act, one of which is to ensure public safety in accordance with s 3 (1) (a) of that Act. However it is conceded that the purpose of the licencing regime is protective not punitive and all endeavours are directed towards maintaining and enhancing public safety.

103. From Mr Sharpe’s perspective I only place minimal weight on the personal references referred to in the material filed by him. Whilst the references were not tested by the Commissioner the main weight attaches to his genuine need for firearms possession and his generally positive conduct with using firearms. These are relevant matters to some extent. I note that many of the referees would be aware of Mr Sharpe’s serious history some having given references earlier in his successful applications for a licence.

104. In balancing those risk matters as referred to in Rose with the objects and the overall protective purpose of public safety from s 3 of the Firearms Act I am satisfied that on the evidence and material before the Tribunal, it would be in the public interest to grant the licence application, and I so find.

105. The appropriate approach would be that the Tribunal sets aside the decision.

Conclusion

106. Because of the findings that I have made, it is appropriate to set aside the decision of the Commissioner.

107. As this is an administrative review matter, it therefore follows that the correct and preferable decision is to set aside the decision of the respondent.

108. I therefore make the following orders:

Orders

1. The decision to refuse the Applicant’s Category AB Firearms Licence is set aside.

2. The Respondent is to grant the applicant a Firearms Licence on the terms sought in the 17 May 2022 application.

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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

Amendments

18 July 2023 - As directed by Senior Member McAteer the date referred to in order 2 of the decision has been replaced to 17 May 2022. Amendments made by consent from both parties.

Decision last updated: 18 July 2023