Stankovic v Commissioner of Police, NSW Police Force

[2025] NSWCATAD 72

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Stankovic v Commissioner of Police, NSW Police Force [2025] NSWCATAD 72

Hearing dates:

15 February 2024

Date of orders:

28 March 2025

Decision date:

28 March 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Rogers, Senior Member

Decision:

The decision of the Commissioner of Police to refuse Mr Stankovic’s application for a Category A firearms licence is set aside. A Category A firearms licence is to be issued to Mr Stankovic.

Catchwords:

ADMINISTRATIVE REVIEW – Firearms Act 1996 – refusal of a Category A firearms licence – fit and proper person - public safety – continuous and responsible control – contact with son with criminal history – Applicant’s traffic record – public interest

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Mental Health Act 2007

Cases Cited:

Almasi v Commissioner of Police, NSW Police Force [2023] NSWCATAD 312

AML v Commissioner of Police, NSW Police Force [2013] NSWADT 5

Australian Broadcasting Tribunal v Bond and Ors (1990) 170 CLR 321

Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254

Commissioner of Police v Toleafoa [1999] NSWCATAP 9

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

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

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

El-Chamy PSM v Commissioner of Police, NSW Police Force [2023] NSWCATAD 242

Hamid v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 43

Hughes and Vale Pty Ltd v The State of New South Wales (No 2) (1955) 93 CLR 127

Kammoun v Commissioner of Police, NSW Police Force [2021] NSWCATAD 273

Lee v Commissioner of Police [2020] NSWCATAD 144

Ly v Commissioner of Police, NSW Police [2004] NSWADT 115

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

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

Petas v Commissioner of Police, NSW Police [2013] NSWADT 137

Ryan v Commissioner of Police [2021] NSWCATAD 23

Tannous v Commissioner of Police [2011] NSWADT 116

Tolley v Commissioner of Police, NSW Police [2006] NSWADT 149

Treyvaud v Commissioner of Police, NSW Police Force [2023] NSWCATAD 317

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

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

Category:

Principal judgment

Parties:

Simon Stankovic (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Applicant (self-represented)
Crown Solicitor (Respondent)

File Number(s):

2023/00228060

Publication restriction:

(1) Pursuant to section 64(1)(c) of the Civil and Administrative Tribunal Act 2013, the publication of evidence given during the Private Hearing on 15 February 2024 and contained in the Confidential Material and Confidential Affidavit is prohibited.

(2) Pursuant to section 64(1)(d) of the Civil and Administrative Tribunal Act 2013 the disclosure of any evidence given during the Private Hearing on 15 February 2024 or contained in the Confidential Material and Confidential Affidavit is restricted to the Respondent, the Respondent’s legal representatives and the Tribunal.

(3) Pursuant to section 64(1)(b) and (c) of the Civil and Administrative Tribunal Act 2013 the publication or reporting of the Private Hearing on 15 February 2024, including any evidence given in the hearing, is prohibited.

(4) Pursuant to section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 that the disclosure of the names of Jamin Stankovic’s partner who was the mother of Mr Simon Stankovic’s two granddaughters and also the names of the two granddaughters is restricted to the Applicant, the Respondent, the Respondent’s legal representatives and the Tribunal. This restriction on disclosure also applies to any information, picture or other material that identifies these individuals or is likely to lead to their identification.

(5) Publication of the material in those paragraphs marked ‘[NOT FOR PUBLICATION]’ is prohibited.

REASONS FOR DECISION

1. This case is about whether Mr Stankovic should be granted a firearms licence.

2. Mr Stankovic applied for a Category A firearms licence but the Commissioner of Police refused the application. On review of that decision, it now falls to the Tribunal to decide what is the correct and preferable decision having regard to all the circumstances of the case.

Background

3. Mr Stankovic applied for a Category A firearms licence (licence) on 17 May 2023. The genuine reason he provided for possessing and using a firearm was target shooting and he provided details of the club at which he was a member.

4. On 1 June 2023 the Commissioner of Police (Commissioner) refused the application because Mr Stankovic was found guilty of ‘destroy or damage property <=$2000 – T2’ in the Local Court on 3 February 2018. The Court imposed a 12 month conditional release order on Mr Stankovic without recording a conviction. The Adjudication Officer at the Firearms Registry also took into Mr Stankovic’s driving record in deciding to refuse the licence. This included the fact Mr Stankovic lost NSW visiting driver privileges from 20 October 2020 to 19 March 2021. When Mr Stankovic re-applied for a driver’s licence he was refused because of his demerit points. He had to wait a further three months to get his driver’s licence. The Adjudicator formed the view that Mr Stankovic would not comply with the legislative requirements for the possession and use of firearms because of the 2018 criminal matter and Mr Stankovic’s traffic history, concluding it would not be in the public interest for Mr Stankovic to be issued with a firearms licence.

5. On 6 June 2023 Mr Stankovic requested a review of the decision to refuse him a firearms licence. He explained that the property damage charge occurred because he leaned on a boom gate that fell over and the incident was captured on CCTV. He said that Police agreed his actions were “not malicious” but the RSL pressed charges. He attributed his loss of licence to moving to NSW from Tasmania and not knowing how red light speed cameras worked. He said that he was very lost in Sydney. He said he did not see how this would impact on his application for a firearms licence. He explained he sought the firearms licence in order to participate in target shooting with his Indigenous family and friends.

6. On internal review, the Senior Adjudicator considered Mr Stankovic’s driving record including the loss of NSW visiting driver privileges in October 2020, refusal of driver’s licence application on 22 March 2021 and also the suspension of driver’s licence on 25 January 2022, which I understand from the traffic record filed in these proceedings was due to fine default and lifted the day it was to commence. The Senior Adjudicator also considered the boom gate incident at the RSL on 11 November 2018 and the penalty imposed, and observed that Mr Stankovic “grabbed the boom gate…causing it to break”. The Senior Adjudicator considered that Mr Stankovic had a “relatively unblemished” criminal history and that the boom gate incident was not malicious or serious in nature. However, the Senior Adjudicator placed significant weight on Mr Stankovic’s traffic history, concluding that while the speeding offences were not “of a serious nature”, these offences were “consistent” and “repetitive” and showed that Mr Stankovic continued to breach traffic laws. The Senior Adjudicator affirmed the decision to refuse Mr Stankovic a firearms licence, taking the view that Mr Stankovic’s conduct raised concerns for public safety and he showed a lack of regard for the law.

7. On 17 July 2023 Mr Stankovic lodged an application for administrative review in the Tribunal Registry. The matter came before me for hearing on 15 February 2024.

Administrative review jurisdiction

8. The Tribunal’s jurisdiction to review a decision of the Commissioner of Police to refuse to issue a firearms licence is derived from section 75(1)(a) of the Firearms Act 1996. That jurisdiction is exercised under the Administrative Decisions Review Act 1997.

9. When determining an application for an administrative review, the Tribunal must decide what the correct and preferable decision is, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law, meaning legislation and common law: section 63 of the Administrative Decisions Review Act 1997.

10. The Tribunal is not confined to only considering the material that was before the Commissioner at the time the decision under review was made. The Tribunal can also have regard to any relevant material before it at the time of the review: see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

11. The Tribunal is to approach the issue of whether the firearms licence should be granted to the Applicant afresh, without any presumption as to the correctness of the decision under review: see McDonald v Director-General of Social Security (1984) 1 FCR 354, 357.

12. In determining the application, the Tribunal may exercise all of the functions conferred or imposed by the Firearms Act 1996 on the Commissioner: refer to section 63(2) of the Administrative Decisions Review Act 1997.

Relevant legislation

13. The Firearms Act 1996 establishes a licensing and permit scheme for the possession and use of firearms in NSW. Unless otherwise stated, all references to legislative provisions in these reasons for decision are to the Firearms Act 1996.

14. The underlying principles set out in section 3(1) the Firearms Act 1996 include:

…(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…

15. The objects of the Firearms Act 1996 in section 3(2) include

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

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

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

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

16. On receipt of an application for a firearms licence, the Commissioner has the discretion to issue the licence or to refuse the application: refer to section 11(1) of the Firearms Act 1996.

17. A licence must not be issued unless the Commissioner is satisfied that the applicant is “a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace”: section 11(3)(a) of the Firearms Act 1996.

18. Section 11(4) of the Firearms Act 1996 states that a licence must not be issued if the Commissioner has reasonable cause to believe the applicant may not personally exercise continuous and responsible control over firearms because of:

(a)  the applicant’s way of living or domestic circumstances, or

(b)  any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or

(c)  the applicant’s intemperate habits or being of unsound mind.

19. The Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be “contrary to the public interest”: section 11(7) of the Firearms Act 1996.

The hearing

Short adjournment

20. Mr Stankovic was self-represented and his partner attended the hearing as a support person, not a witness. Mr Stankovic did not have the documents filed in these proceedings with him at the hearing. Mr Poberezny, solicitor for the Respondent, provided Mr Stankovic with a copy of the documents at the bar table.

21. I asked Mr Stankovic whether he had seen those documents before and he said he had seen some of the material but that he had not read all of it. Mr Stankovic explained that he had initially instructed a private firm of solicitors in this proceeding. He said he had not read the bundle of material filed by the Respondent which was compiled from documents produced under Summons by the Department of Communities and Justice. Mr Stankovic did not know if he was aware that this Summons had been issued and that access orders had been made in respect of those documents. He said he had seen some of the section 58 documents and he confirmed he had also seen and read the Respondent’s Outline of Submissions.

22. I asked Mr Stankovic if he wanted an adjournment and for the hearing to be listed another day. He said he did not want an adjournment. I explained he may wish to consider the material and to have an opportunity to file evidence in response to it.

23. I adjourned the hearing to allow Mr Stankovic time to read any of the material he had not read before. I gave Mr Stankovic 75 minutes to do that, from 10:45am to 12:00pm.

24. When I reconvened the hearing, I asked Mr Stankovic whether he wanted to adjourn the hearing. He said that he was happy to proceed. He confirmed that he had now had an opportunity to read the material. I asked him whether he would like the opportunity to provide any other evidence in response and what he would have done if he had read the material some time prior to the hearing. He said he wouldn’t have done anything differently. He confirmed that he had no other evidence to file and that he intended to give oral evidence in response to the Commissioner’s reasons for refusing him a firearms licence. I asked Mr Stankovic again whether he wanted an opportunity to respond to what he had read, to access the material produced under Summons or to obtain legal advice and he declined. He confirmed he did not seek an adjournment.

25. In those circumstances, I determined that I would proceed with the hearing. I note the broad discretion the Tribunal has to adjourn proceedings in section 51 of the Civil and Administrative Tribunal Act 2013. However, in circumstances where the Applicant stated that he does not wish to file any further evidence, obtain legal advice or have time to consider the material further, I considered that the hearing should proceed.

Orders that the hearing be conducted partly in private and restricting publication and disclosure

26. On 25 October 2023 the Tribunal made an order under section 59 of the Administrative Decisions Review Act 1997 that the Commissioner was not required to lodge copies of the Confidential Material as specified in the Confidential Affidavit of SC Christopher Moore (Confidential Affidavit) with the Tribunal as part of the section 58 documents.

27. When the substantive application came before me on 15 February 2024. I determined that I should conduct part of the hearing as a hearing in private under section 49(2) of the Civil and Administrative Tribunal Act 2013 (Private Hearing) in order to deal with the Confidential Material as referred to in the Confidential Affidavit. This part of the hearing was conducted in the absence of Mr Stankovic and the public.

28. Previous orders had been made by the Tribunal restricting disclosure and publication of the Confidential Material and Confidential Affidavit. In order to deal with this material, including to hear the Commissioner’s representative about nature of the Confidential Material, whether it should be admitted into evidence and if so, its relevance and probative value to the issues before the Tribunal, I was satisfied that it was desirable to conduct part of the hearing in private given its confidential nature.

29. I also made the following orders:

1. An order prohibiting the publication of evidence given during the Private Hearing on 15 February 2024 and contained in the Confidential Material and Confidential Affidavit. This order was made under section 64(1)(c) of the Civil and Administrative Tribunal Act 2013.

2. An order restricting the disclosure of any evidence given during the Private Hearing on 15 February 2024 or contained in the Confidential Material and Confidential Affidavit to the Respondent, the Respondent’s legal representatives and the Tribunal. That order was made under section 64(1)(d) of the Civil and Administrative Tribunal Act 2013.

3. An order prohibiting the publication or reporting of the Private Hearing on 15 February 2024, including any evidence given in the hearing. That order was made under section 64(1)(b) and (c) Civil and Administrative Tribunal Act 2013.

Orders prohibiting disclosure of certain names

30. Mr Stankovic has a son, Jamin Stankovic. I will refer to him as Jamin throughout these reasons to avoid any confusion.

31. I made an order under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 that the disclosure of the name of Jamin’s partner who was also the mother of Jamin’s two daughters and also the names of those two daughters is restricted to the Applicant, the Respondent and the Respondent’s legal representatives and the Tribunal. This includes any information, picture or other material that identifies these individuals or is likely to lead to their identification: refer to section 64(4) of the Civil and Administrative Tribunal Act 2013.

32. I made this order because of the sensitive nature of the manner of Jamin’s partner’s death and also the ages of the two young daughters.

Opening submissions

For the Respondent

33. The Commissioner’s case relied on the traffic record of Mr Stankovic and his relationship with his son, Jamin. Mr Poberezny said that the following matters are not in dispute:

1. Jamin is a criminal and a member of the Rebels Outlaw Motorcycle Group.

2. The content of Mr Stankovic’s traffic history

34. What the parties do dispute is what the Tribunal should make of that and what inferences should be drawn. Mr Poberezny said there was evidence that Jamin may obtain access to firearms. He pointed to the existence of a familial relationship and recent contact he said Mr Stankovic had with Jamin. He also said that Mr Stankovic wished for a continued relationship with the two granddaughters and this may give rise to Mr Stankovic having contact with Jamin or at least the possibility of contact in the future.

35. The Respondent argued that there were three bases which ought lead the Tribunal to affirm the decision to refuse Mr Stankovic a firearms licence. The first was that the Tribunal cannot be satisfied that Mr Stankovic is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace (refer to section 11(3)(a)). Mr Poberezny explained that the Respondent does not seek to attack Mr Stankovic’s character, but rather, it is the second part of section 11(3)(a) that gives cause for concern, namely whether Mr Stankovic “can be trusted to have possession of firearms without danger to public safety or to the peace”. He argued that the Tribunal must be positively satisfied that Mr Stankovic can be so trusted, not that the Tribunal is not satisfied that he can’t be trusted to have possession of firearms without danger to public safety or to the peace.

36. Secondly, the Commissioner contended that the Tribunal would have reasonable cause to believe that Mr Stankovic may not personally exercise continuous and responsible control over firearms because of his domestic circumstances, that is, his relationship with Jamin (refer to section 11(4)(a)). Mr Poberezny underscored the fact that the provision uses the word “may” not “will”, and he submitted that is a lower standard.

37. The final basis Mr Poberezny argued the Tribunal should affirm the refusal decision was that the Tribunal may refuse a licence if it considers that the issue of the licence would be contrary to the public interest (refer to section 11(7)). Mr Poberezny described that as a “catch all” provision and that it would cover both Mr Stankovic’s driving record and relationship with Jamin.

For the Applicant

38. Mr Stankovic said that he was 60 years old. He was shocked when he was refused a firearms licence and he thought his standing in the community was better. He described himself as embarrassed and shocked by his own driving record.

39. Mr Stankovic said he thought the refusal of his firearms licence was more to do with his son. He explained that he could understand the seriousness of that issue and said he had got Jamin arrested and put in gaol each time.

40. Mr Stankovic described his relationship with Jamin as “estranged” since Jamin was in his late teens. His wife was deceased and he had kept Jamin “at arm’s length” because he had a 19 year old son and does not like this son to have contact with Jamin. Mr Stankovic said that his only contact had been with his daughter-in-law who dropped the two kids off. Jamin is not allowed in Mr Stankovic’s house. Describing his relationship with Jamin, Mr Stankovic said that “the connection is genetic but that’s about where it ends”.

Evidence

Mr Stankovic’s evidence

41. Mr Stankovic relied on a two page written statement filed in this proceeding. He also gave oral evidence at the hearing.

Written statement

42. In his written statement, dated 22 November 2023, Mr Stankovic said that he has no contact with Jamin and he has in fact had very little contact with Jamin over the preceding 12 years. He said he had contact with Jamin recently after Jamin’s partner committed suicide.

43. For ease of reference, I will refer to Jamin’s partner as ‘MG’, indicating she is the mother of the two girls.

44. Prior to MG’s death, Mr Stankovic said he had not spoken to Jamin for over 18 months, which he said was “typical of our relationship over the last 12 years or so”. Mr Stankovic said he had “sworn” to have “no contact whatsoever for ever” with Jamin following MG’s death.

45. Mr Stankovic said that Police body worn video showing Jamin being pulled over by Police and claiming to reside with Mr Stankovic was incorrect and his son lied to Police. At that time, Mr Stankovic was in fact caring for his two granddaughters and helping MG. Jamin was not allowed near Mr Stankovic’s home at the time. Mr Stankovic stated he had spoken to local police 18 months before that and also following his MG’s suicide to ask about whether he should obtain apprehended violence order against Jamin.

46. Mr Stankovic said that he himself is no risk to the public and he has decided to pursue this application for review out of principle and to die with an unblemished record “not like a Criminal due to [his] son’s actions”.

47. Mr Stankovic referred to his good character and long marriage, nursing his wife in her final years. He described his lengthy history as a builder with no fines or complaints. He said he has also been a Jehovah’s Witness minister. He abhorred violence and could never be involved in hunting animals. The last thing he shot was a rabbit at the age of 13 years old. He is currently working with Indigenous youth in the construction industry.

48. Mr Stankovic sought a gun licence to engage in the hobby of going to the shooting range. His clearly held belief was that he was being punished for the transgressions of his son. Mr Stankovic described the Respondent’s allegations as unfounded and described himself as “a good person who was cursed with a son with issues that were not from his father”.

Oral evidence

49. Mr Stankovic said he had always liked guns and had a lot of friends who had a firearms licence. He said he knew about firearms inspections and had helped others install safes for the safe storage of firearms.

50. Mr Stankovic said that he had his driver’s licence suspended two or three times. He said he regretted “rushing around like an idiot” and that he needed to “not be a lead foot”. He had lived in Hobart and there were no fixed cameras and he soon learnt about the speed cameras when he moved to Sydney.

51. Under questioning, Mr Stankovic accepted the significance of his driving conduct and said was not looking for an excuse. Mr Poberezny asked Mr Stankovic why he had not learnt from his mistakes and changed his driving behaviour. Mr Stankovic said he had been working seven days per week and that he had others relying on him. He was always in a hurry.

52. Mr Stankovic agreed that as far as he was aware, Jamin was a member of the Rebels Outlaw Motorcycle Group. He later described the Rebels as sad, old blokes and not like a real bikie gang.

53. Mr Stankovic agreed that he wanted to be part of his granddaughter’s lives but he hasn’t been able to be physically present. He said Jamin and MG separated in June 2023 and at times the relationship was “volatile”.

54. Mr Stankovic agreed that he had contact with Jamin on 15 or 16 March 2020. Jamin had broken up with MG and turned up in shorts and a singlet. Mr Stankovic said Jamin was on track and not part of a bikie gang and he was “schooling” Jamin. Jamin had breached a Queensland domestic violence order taken out to protect MG. Jamin told Mr Stankovic that he had accidentally had contact with MG on Instagram.

55. Mr Stankovic denied delivering his two granddaughters to Jamin on 10 June 2023 when Jamin was on holiday in the Central Coast. He said Jamin was on holiday on the Central Coast and that Jamin contacted him and asked whether he would like to see the girls. Mr Stankovic and his finance went to see them. Apart from this he had not seen them for 12 to 18 months prior to MG’s death.

56. In May or June 2023 MG and the girls came to Sydney and were living five minutes away from Mr Stankovic. Jamin was not living in Sydney. He said that Jamin had dumped MG there with the two kids. Mr Stankovic and his partner started having contact with MG and the girls and saw them quite a bit.

57. Mr Stankovic said he had no contact with Jamin and that Jamin wasn’t allowed in their house. Mr Stankovic said that when it suited Jamin he stayed with MG.

58. Mr Stankovic said that on 5 July 2023 he had a conversation with MG that he would always be there for her. He told her that Jamin was a “narcissistic pig”.

59. Mr Stankovic said the next morning MG had committed suicide. He went over to her house and Jamin was standing around the yard. The Police and ambulance were there. Mr Stankovic said he told the police present “taser him or shoot him”, that is, Jamin.

60. Mr Stankovic said a few days later, he attended a conference between Jamin and workers from the Department of Communities and Justice (DCJ). He told the DCJ workers that Jamin had never shown aggression towards his own children. Mr Stankovic had seen Jamin smack them but not seen him be abusive towards them. He was supportive of Jamin having care of the children. He said it was a case of supporting Jamin “having them then their going to foster care” or “us fighting with him”.

61. Ms Poberezny challenged Mr Stankovic’s suggestion he had no relationship or contact with Jamin before that, due to the fact that he had met up to see the girls in June 2023. Mr Stankovic responded by saying that meeting up to see the girls was not a relationship or contact. He said that it was the first time he had seen the girls for some time. He said things had deteriorated before MG passed away and her death was the “final straw”.

62. Mr Stankovic said that Jamin told Police when he was pulled over in June 2023 that he was living with Mr Stankovic, but this was in fact a lie. Mr Stankovic said Jamin came back to his house after MG died and seemed to think everything was OK and asked to have a shower. Mr Stankovic said he still refused Jamin entry into the house.

63. Mr Stankovic said he did not allow Jamin into the house because of his current partner. She said she would never feel comfortable with Jamin. Mr Stankovic was adamant that Jamin was not living with him. He said that after MG’s death, Jamin moved to Queensland.

64. Mr Stankovic said he has seen Jamin and the girls once since MG died. Mr Stankovic attended the funeral of his mother-in-law on 26 January 2024 and Jamin was there. Mr Stankovic said he went to the funeral to see his granddaughters. He had not seen them for six months before that. Jamin’s old friend was there. Mr Stankovic said this friend is a member of the Rebels and the President of the Newcastle Chapter of the Rebels. He had been in prison for drug offences. He hasn’t got a motorbike. Mr Stankovic described the Newcastle Chapter as “comical”.

65. Mr Stankovic was asked what would be do if Jamin turned up one day. Mr Stankovic said “if I am being honest I can’t rule that out because of his past history”. Mr Stankovic referred to Jamin showing up at Mr Stankovic’s house asking for a shower shortly after MG’s death. He refused Jamin entry to his house. Mr Stankovic said that Jamin was a “big bloke” and “overbearing” but if Jamin showed up there would need to be a major shift, otherwise he could be strong.

66. Mr Stankovic said that he would always take the girls in. He said he had not taken out any apprehended violence order against Jamin because he did not need to and it would make his partner worry more.

67. Mr Stankovic said in about 2007 there was a news report that two boys had been bashed. Jamin was out on bail at the time and should have been reporting to Police. Mr Stankovic rang a friend who was a Police detective and reported that Jamin was up the back. Jamin was arrested.

68. Mr Stankovic said that there was another occasion when Jamin was in drug rehabilitation. A detective rang Mr Stankovic and told him Jamin was not at rehab. Jamin was ringing Mr Stankovic and he picked Jamin up. He took Jamin to the Police and Jamin assisted Police about a pump action shotgun used in a robbery. Mr Stankovic thought this incident occurred about 15 years ago when Jamin was 18 years old.

69. Mr Stankovic agreed that Jamin knows where he lives but said that Jamin understood the boundaries. He said Jamin thought after MG died that these boundaries would be dropped but he was wrong. Jamin had not been in his house for two years in September. His house has an alarm and is deadlocked, including deadlocks on the windows. He has installed video security cameras and he has dogs. He said his partner is a “security-type person”.

70. Mr Stankovic said he had only told his partner and a couple of good friends that he had applied for a firearms licence.

71. Mr Poberezny took Mr Stankovic to the Police Computerised Operational Policing System (COPS) report which recorded that Jamin was served with a firearms prohibition order and a weapons prohibition order on 1 May 2020. He also referred Mr Stankovic to a COPS report about an incident on 4 May 2020 where Jamin is alleged to have smashed a light and stabbed himself with a hunting knife and when Police attended, Jamin allegedly yelled asking for Police to shoot him and he was threw items off a balcony including an ornamental sword and a screen door he had ripped off. Jamin is alleged to have threatened self-harm, was ultimately tasered by Police and taken by Police to hospital for assessment under the Mental Health Act 2007.

72. Mr Stankovic said that as Jamin gets older he is more talk, a bit like Chopper Read. He said Jamin has never pressured him for anything. He said Jamin has a lot of “presence” and “bravado”. Mr Stankovic again stated he was able to refuse Jamin a shower and he did not want him in the house. He said, “I don’t feel that pressure from him”.

Evidence of Anthony Macken

Affidavit dated 10 January 2024

73. Mr Macken is an Intelligence Team Leader at the NSW Police Force and has worked as an Intelligence Analyst for more than 20 years. He has held specialised knowledge about Outlaw Motorcycle Gangs (OMCGs) since 2002. He sets out in his affidavit aspects of OMCGs including their involvement in serious crime and their use of violence, fear and intimidation. He described OMCGs as having a culture of “absolute loyalty” to the OMCG and these groups to be territorial and involved in conflicts which “almost always include elements of violence which quickly escalate”. His opinion was that the Rebels Motorcycle club was an OMCG and that the Rebels use serious violence to further the group’s aims including criminal activities such as extortion and intimidation and drug manufacture, cultivation and supply.

74. Mr Macken was of the opinion that Jamin was a full member of the Rebels OMCG since June 2023. He based this opinion on various COPS reports outlined in an annexure to his affidavit that describe interactions Jamin had with Police between 10 June 2023 and 10 August 2023. These reports concern Jamin wearing or having a jumper with Rebels logos, a vest with Rebels patches and certain tattoos. Based on his possession of these items and these tattoos, Mr Macken concluded that Jamin was a full Rebels member as only a full Member would be permitted to wear or have such items or tattoos.

Oral evidence

75. Mr Macken said that firearms play a major part in OMCGs. They are used in conflicts to shoot at rivals. OMCGs source firearms by importing illegal guns or from the theft of legitimate firearms that are diverted onto the black market.

76. Mr Macken said Rebels members would not use scooters or public transport. It is the case that OMCGs expect members to ride motorcycles or to leave the club.

Police Body worn video

77. I viewed certain Police body worn video files that formed part of the Commissioner’s Further Bundle of Documents. These videos were from occasions on 10 June 2023 and 15 June 2023 when Police pulled Jamin over when he was driving. On 10 June 2023 Police searched Jamin’s car and found a “vest colours” in the boot and on both occasions Jamin was wearing a Rebels jumper. Jamin told Police that the Rebels were no longer what they were and nowadays they tended to just have barbeques. He also told Police that he was moving back to Sydney with Mum and Dad. Jamin told Police about being recently in a psychiatric unit.

Private hearing

78. [NOT FOR PUBLICATION]

Submissions made by the parties

For the Respondent

79. Mr Poberezny argued that Mr Stankovic was an unreliable witness and that his evidence was inconsistent, unsatisfactory, implausible and false. He pointed to the statement made by Mr Stankovic in his two page statement, dated 22 November 2023, in which Mr Stankovic wrote it was a “true fact” that since 2011 he had “no contact” with Jamin since 2011 “for any length of time”. Mr Stankovic also stated that he had not spoken to Jamin for 18 months and had little contact over the last 12 years. In fact, Mr Stankovic had contact with Jamin in January 2024. He had contact with Jamin in June 2023 when Jamin was on the Central Coast for a holiday. He also had contact with Jamin in July around the time of MG’s suicide and the contact with DCJ about the girls.

80. Mr Poberezny contended that these were inconsistencies and were important because this case was about Jamin and Mr Stankovic’s contact with Jamin. He said that they matter because Jamin has an extensive criminal history and member of the Rebels OMCG.

81. Mr Poberezny submitted that Mr Stankovic’s evidence about moving to NSW and not understanding how red light speed cameras worked to be unsatisfactory. He underscored the fact that the traffic offending was recent.

82. Mr Poberezny argued that it was implausible that Mr Stankovic would not let Jamin into his house. He wants to have time with his grandchildren and Jamin has custody of the girls. The idea that Mr Stankovic would have no contact and no relationship with Jamin in those circumstances was implausible, Mr Poberezny suggested. Mr Stankovic saw the children in June 2023 and July 2023 and these were inconsistencies in his evidence. Mr Poberezny suggested that Mr Stankovic now sought to distance himself and change his evidence because he thought he had a right to a firearms licence. He said Mr Stankovic was not a reliable witness and this case turned on Mr Stankovic’s evidence.

83. Mr Poberezny argued that Mr Stankovic was not a fit and proper person who can be trusted to have possession of firearms without danger to public safety. He relied on Mr Stankovic’s traffic record, and described Mr Stankovic as having a lack of insight into the seriousness of that offending and the relationship between compliance with traffic and firearms legislation. Mr Poberezny pointed out that Mr Stankovic had committed a further driving offence in September 2023 after being on notice that his driving record is relevant to this proceeding. He described Mr Stankovic’s explanation about moving to NSW as “concerning” and as evidence of an ignorance of the law. He argued that if Mr Stankovic can’t comply with traffic law the Tribunal could not be confident that he will comply with the Firearms Act 1996.

84. Mr Poberezny said that Mr Stankovic’s view was that he had a right to a firearm and that this was an “entitled attitude”.

85. In relation to Jamin, Mr Poberezny contended that the mere fact of a familial relationship is sufficient to indicate that Mr Stankovic may not personally exercise continuous and responsible control over firearms. In response to evidence that Jamin is living in Queensland, Mr Poberezny stated “Queensland is still in Australia” and Jamin knows where Mr Stankovic lives. Jamin does not know Mr Stankovic has applied for a firearms licence but Mr Poberezny submitted that word can spread. Mr Stankovic has had recent contact with Jamin and intends to be part of the lives of his granddaughters. Mr Poberezny submitted that from that the Tribunal could infer that Mr Stankovic may be in contact with Mr Stankovic in the future and may not exercise continuous and responsible control over his firearms.

86. Mr Poberezny argued that there was the possibility of contact between Mr Stankovic and Jamin. If there was contact it was possible Jamin would obtain access to firearms by being overbearing and pressuring Mr Stankovic or by being at the house and knowing where the safe was. Mr Poberezny emphasised that the wording of the section is that a person “may” not exercise continuous and responsible control. He said what that meant was a “possibility” that Mr Stankovic would not exercise such control. He relied on the comments made by the Tribunal in El-Chamy PSM v Commissioner of Police, NSW Police Force [2023] NSWCATAD 242, a case I address under the hearing ‘Consideration’ below.

87. Mr Poberezny argued that it would be contrary to the public interest for Mr Stankovic to be issued with a firearms licence. He described this as a “catch all” and again referred to his submissions about Mr Stankovic’s traffic record and lack of insight into the seriousness of that conduct and his familial relationship and contact with Jamin. He said that Mr Stankovic’s genuine reason for seeking access to firearms was for a hobby, not for income or for the purpose of vermin control. He said there was no right to a firearm.

88. Mr Poberezny clarified that he did not argue that Jamin was in fact living with Mr Stankovic. What he argued was that based on past history, there may be contact with Jamin in the future and that Jamin told Police from his perspective he would be moving back in with Mr Stankovic.

For the Applicant

89. Mr Stankovic said he accepted that he did not have a right to access firearms. He said he never felt entitled and he was not that kind of person.

90. He said he did accept his traffic history was a violation of the law. As a builder he had to comply with workplace safety laws and building standards. He did so without incident.

91. Mr Stankovic denied his evidence was false or misleading and that he may have been unclear on which month he had seen Jamin.

92. Mr Stankovic said that Jamin is living in Queensland and estranged. He said that nothing can be absolutely guaranteed but that he knew his relationship with his son and the way Jamin views him. Jamin had never extorted from him or tried to get something out of him. He said Jamin saw him as a “hard bastard”.

Respondent’s submissions in the private hearing

93. [NOT FOR PUBLICATION]

94. [NOT FOR PUBLICATION]

Consideration

Assessment of the evidence and findings of fact

Jamin and Mr Stankovic’s connection with Jamin

95. Jamin’s involvement in serious criminal activity is not in dispute. Jamin’s criminal history is extensive and included convictions for common assault, affray, assault occasioning actual bodily harm, fail to appear, robbery, breach of bail, escape police custody, ‘receive stolen property – min. indict. Off. ,=$5000 – T2’, break and enter, common assault, ‘armed w/I commit indictable offence – T1’, possess unauthorised prohibited firearm, affray, unlicensed driving and breaches of an AVO. He received prison sentences in 2007 and 2008, the longest of which was for one year and eight months. He was also sentenced to an intensive corrections order and community corrections order in 2019 and 2020 respectively. Some of the charges were determined in the District Court.

96. I accept the evidence of Mr Macken that Jamin is a full member of the Rebels since at least June 2023 and that the Rebels are an OMCG.

97. I examined COPS records which stated that on 20 December 2007 Jamin voluntarily attended the police station with Mr Stankovic and was arrested, cautioned and participated in an electronically recorded Police interview. This followed an incident on 18 December 2007 in which Jamin and two co-accused went to a victim’s house to obtain an amount of money owed to one of the co-accused. One of the co-accused had a length of timber and put on gloves. The other carried a bag. One of the co-accused started assaulting the victim with the timber and Jamin later told Police the co-accused told the victim he had put a $20,000 bounty on his head. Jamin saw the other co-accused unzip the bag and take out a double barrel pump action shortened shotgun. The barrel of this shotgun had been sawn off to a length of about ten centimetres. Jamin ran out of the house and while outside Police allege a co-accused pointed the shotgun at the victim’s head and threatened to kill him. The victim grabbed a machete and the co-accused assaulted the victim with the timber. The victim struck the co-accused to the ankle and back with the machete. The son of the victim then struck the co-accused holding the timber and the co-accused holding the gun ran from the house. The co-accused with the gun then forced open the front door with his firearm. Jamin and the co-accused later abandoned the car they had used. Jamin made admissions to police that he hid the shotgun in its bag under a rock. Jamin later retrieved the shotgun and returned it to the co-accused. Jamin was later convicted of ‘common assault’, ‘possess unauthorised prohibited firearm – T2’ and ‘armed w/i commit indictable offence – T1’ which resulted in two sentences of four months (served concurrently) and 20 months imprisonment (served concurrently and with a non-parole period of 8 March 2009 to 7 November 2010). The co-accused who received blows from the machete later died in hospital.

98. Jamin was also convicted of ‘robbery-S1’ on 17 December 2008 in respect of what the Police alleged was a robbery on 26 November 2006. Police alleged that Jamin took about $3,000 and that he threatened the victim with a knife, “swung the knife” and told the victim he had a gun and showed a metal dark handle inside his jacket. He was later alleged to stand over the victim with a stick or pole. When Police attended the scene Jamin appeared drug affected and his blood sample later returned a positive result for methylamphetamine and amphetamine.

99. When I consider these incidents and the entirety of the evidence in respect of Jamin, including his criminal convictions and the sentences imposed, I have no difficulty in reaching a finding that there would be a serious risk to public safety if Jamin was to have access to firearms. This finding aligns with the fact Police issued Jamin with a Firearms Prohibition Order and a Weapons Prohibition Order in 2019.

100. I do agree with Mr Poberezny that a large part of this case does depend on my assessment of Mr Stankovic’s evidence about his contact with Jamin, the nature of that relationship and whether Jamin could influence or pressure Mr Stankovic to provide him with firearms.

101. I accept that Mr Stankovic had contact with Jamin on the following occasions in recent years:

• On 15 or 16 March 2020 – when he spoke with Jamin about an alleged breach of a Queensland apprehended violence order

• On 10 June 2023 – when he travelled to the Central Coast to see his two granddaughters

• On 6 July 2023 – following the suicide of MG

• In the days following 6 July 2023 – for a meeting with DCJ about the girls

• On 26 January 2024 – at the funeral of Jamin’s mother-in-law

102. I do not consider that the fact these instances of contact occurred means that Mr Stankovic’s evidence is in fact unreliable, as Mr Poberezny suggests. In Mr Stankovic’s written statement he said “I have had no contact with my son and have had no contact of the years for any length of time since 2011” (emphasis added). I accept that Mr Stankovic has had no lengthy contact with Jamin in recent years. This reading of that phrase in the statement is consistent with another thing Mr Stankovic said later in the same document that he had “very little contact with [Jamin] over the last 12 years” (emphasis added). While lacking in precision, I accept that Mr Stankovic was truthful about the extent of his contact with Jamin, particularly as updated and explained in further detail in his oral evidence.

103. The fact that Mr Stankovic accompanied Jamin to hand himself in to Police on 20 December 2007 could be viewed two ways. According to Mr Stankovic, he was involved in alerting Police to Jamin’s whereabouts and having him arrested. The 20 December 2007 attendance at the police station could also be viewed as Mr Stankovic acting as an intermediary between Police and Jamin in order to assist Jamin.

104. However, I consider a turning point came in July 2023 when MG died. I believed Mr Stankovic when he said that the death of MG was the “final straw” in his relationship with Jamin. I also accept what Mr Stankovic said in his written statement that he had “very little contact with [Jamin] over the last 12 years and now I have sworn to have no contact whatsoever for ever after the suicide of my granddaughter’s [sic] mother” (emphasis added).

105. I am satisfied that Mr Stankovic has set a boundary with Jamin that he will not allow him into his house. I am bolstered in my view that Mr Stankovic would maintain his exclusion of Jamin from his home in the future, given that he maintained this position in the hours following MG’s suicide when Jamin wanted to come into Mr Stankovic’s house to use his shower. This followed the two men attending the property where MG had suicided and when police and ambulance officers had arrived at the scene.

106. I think it is to Mr Stankovic’s credit that he conceded he could not rule out the possibility that Jamin would seek to contact him in future. I do accept that there may be future contact between Mr Stankovic and Jamin, particularly due to Mr Stankovic’s wish to continue to see his granddaughters, but I am satisfied that Mr Stankovic would be able to maintain boundaries with Jamin and limit his contact with him.

107. I do not make anything of the fact that Jamin told Police when he was pulled over by officers in June 2023 that he was moving back to Sydney with Mum and Dad. I note that Mr Poberezny did not assert that Jamin was in fact living with Mr Stankovic, but he argued that this comment to Police reflected Jamin’s intentions. The evidence is that Jamin did not in fact move in with Mr Stankovic and the Respondent does not seek to argue that he did.

Traffic record

108. Mr Stankovic has a poor driving record. He has what I count to be 48 driving offences over the period 1980 to 2023, a period of approximately 43 years. There are seven further driving offences committed in Tasmania between 2008 and 2013. That makes 55 traffic offences over a period of 43 years in two States.

109. I make the observation that 12 of the 44 NSW driving offences are for driving for less than 10 kilometres per hour over the speed limit. A further five are for driving at not more than 15 kilometres per hour over the speed limit. There are ten offences for speeding more than 10 but less than 20 kilometres per hour over the limit and six offences for speeding more than 15 kilometres but not more than 30 kilometres per hour over the limit.

110. The most serious speeding offences are two instances of driving more than 30 kilometres per hour but not more than 45 kilometres per hour over the speed limit in 1992 and 2003. I observe that these offences occurred approximately 20 years ago.

111. The last speeding offence was in December 2022.

112. I find that Mr Stankovic continued to speed on the road and to commit other driving offences, despite receipt of numerous demerit points warning letters and the loss of NSW visiting driver privileges in October 2020 and the refusal of driver’s licence application on 22 March 2021 both due to demerit points.

113. I am satisfied Mr Stankovic committed other sorts of driving offences over the same period, including having an insecure/overhanging load, using his mobile phone (x 2), parking in a disabled parking spot, driving while unlicensed because he had another other state licence and had lived in NSW for over 3 months (in 2020), not stopping at red arrow and disobeying traffic lights (x 3), not giving signal (x 2), not wearing seat belt (x 3), ignoring a stop sign and being an unlicenced rider (in 1980).

114. I do not accept Mr Stankovic’s explanation that his driving record can be explained on the basis that he moved to NSW and did not understand about red light speed cameras. His explanation that he was rushing and in a hurry and needed to slow down does nothing to reduce his personal culpability for his driving.

The Confidential Affidavit and Confidential Material

115. [NOT FOR PUBLICATION]

Application of the law

116. Mr Stankovic’s case was that he should not be punished for the transgressions of his son and treated like criminal himself. This is not the purpose of the firearms licensing scheme or indeed this administrative review. As the Tribunal said in Petas v Commissioner of Police, NSW Police [2013] NSWADT 137 at [36]

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

117. I agree with Mr Poberezny’s submission that this case is in part about Jamin and Mr Stankovic’s contact with Jamin. As stated above, I have no difficulty reaching a conclusion that there would be real risks to public safety if Jamin were to have access to firearms and I made that finding. However, what I need to determine in this proceeding is whether there would be a real and appreciable risk if Mr Stankovic was to be issued with a firearms licence, given what I have found about the nature and degree of Mr Stankovic’s contact with Jamin.

118. Applying the comments of the Tribunal in Tolley v Commissioner of Police, NSW Police [2006] NSWADT 149 at [31], there is no basis for differentiating between the conduct of Mr Stankovic and his son which may impact on public safety if Mr Stankovic was to be issued with a firearms licence.

Fit and proper person and can be trusted to have firearms without danger to public safety and continuous and responsible control over firearms

119. The meaning of fit and proper person is not defined in the Firearms Act 1996. The expression “takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities”: Australian Broadcasting Tribunal v Bond and Ors (1990) 170 CLR 321 at [36]. According to the High Court in Hughes and Vale Pty Ltd v The State of New South Wales (No 2) (1955) 93 CLR 127, the expression ‘fit and proper person’ gives a decision-maker a very wide discretion and it involves three things: “honesty, knowledge and ability” to execute the office or vocation (at [9]).

120. Whether or not an applicant for a firearms licence is a ‘fit and proper’ person is to be considered in the statutory context of whether the person can be trusted to possess firearms without danger to public safety or the peace (section 11(3)(a) of the Firearms Act 1996) and the principles and objects of the Firearms Act 1996, which squarely rests on the need to ensure public safety (refer to section 3(1)(a) of the Firearms Act 1996 and Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 at [22]).

121. Previous cases have addressed the question of how the Tribunal is to assess risk to public safety. In Ward v Commissioner of Police, New South Police Service [2000] NSWADT 28 Deputy President Hennessy said:

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.

122. In Webb v Commissioner of Police New South Wales Police [2004] NSWADT 110 Judicial Member Montgomery said:

The principal issue that I have to decide is whether there is a risk to the safety of the public if Mr Webb’s licence is reinstated. In determining this issue it is my view that it is necessary to adopt a balanced view of 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.

123. According to Martin v Commissioner of Police, New South Police Force [2017] NSWCATAD 97 at [64]-[66], the Tribunal should approach the question of risk in a “nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety”.

124. Deputy President Hennessy addressed the comments she made in Ward in the case of AML v Commissioner of Police, NSW Police Force [2013] NSWADT 5, stating the phrase “virtually no risk” “should not be understood as a judicial gloss” on the plain meaning of the statute and the decision-maker should apply the relevant test by “exercising a judgement based on all the evidence”: [8] and [10].

125. I turned to the question of whether Mr Stankovic’s contact with Jamin gives rise to a risk to public safety or would give the Tribunal reasonable cause to believe Mr Stankovic may not exercise continuous and responsible control over firearms and would not be a fit and proper person who can be trusted to have possession of firearms.

126. I considered the case of Tolley v Commissioner of Police, NSW Police [2006] NSWADT 149, a case in which the Applicant’s son, Stuart Tolley, had been convicted and again charged with serious drug offences including commercial drug supply. It was previously found and again alleged that Stuart Tolley has carried out the offending from the Applicant’s house. Stuart Tolley had also come to the attention of police for possession of an unregistered firearm. Stuart Tolley was held on remand but there was no evidence to suggest that if granted bail he would not return to live with his father. The Commissioner argued that the Applicant should not continue to hold a firearms licence because Stuart Tolley or his associates knew there may be firearms at his premises as this was a risk to public safety and the safety of Mr Tolley snr. The Applicant argued that he should not be punished for his son’s crimes. The Tribunal concluded at [38] that there was a risk to public safety “by the existence of firearms on premises where Stuart Tolley and his associates may be aware firearms are present”. The Tribunal affirmed the decision to impose a condition that the Applicant not store his firearms as his residential address.

127. I also considered the case of Treyvaud v Commissioner of Police, NSW Police Force [2023] NSWCATAD 317. In that case the issue was not the character of the Applicant but his associations with his father, mother and brother and in particular the conduct of his father and brother. The Tribunal concluded that the Applicant’s associations with his father and potential associations and proximity with his brother “both of whom would be or would likely be working and/or living in close proximity to the intended location of firearm storage and/or usage” (at [96]) and found that it was not in the public interest for Mr Treyvaud to hold a firearms licence. Mr Stankovic’s case differs in that there is no suggestion on the evidence that Jamin lives or works near his father.

128. Mr Poberezny relied on the case of El-Chamy PSM v Commissioner of Police, NSW Police Force [2023] NSWCATAD 242. The facts of that case were that Mr El-Chamy himself had no criminal history but his eldest son lived with him as a condition of his bail and was alleged to have an association with high-ranking members of the Hamzy Organised Crime Network. There were other connections with the Hamzy family though the Applicant’s sister and sons. A Firearms Prohibition Order was issued in respect of the Applicant’s eldest son. However, the facts of El-Chamy differed to a significant degree to the present case as:

1. The son the subject of the Firearms Prohibition order resided with the Applicant and the Tribunal inferred from the evidence that the Applicant intended to store firearms at his residence in the firearms safe in his shed.

2. Drugs had been found in the Applicant’s gun safe and the Tribunal concluded that the Applicant’s son had control of the residence and the son and his visitors, referred to as the “boys”, had control of the shed in which the safe was located. They also access to the safe as drugs had been found in the safe.

129. Jamin does not live with Mr Stankovic but Jamin knows where Mr Stankovic lives. I am satisfied that Mr Stankovic would refuse Jamin entry to his house if Jamin arrived at Mr Stankovic’s house in the future. I do not accept, as the Respondent argued, that the mere fact of a familial relationship is sufficient to indicate that Mr Stankovic may not personally exercise continuous and responsible control over firearms.

130. As the Tribunal has identified in previous cases, it is the possibility that another person might exert pressure on the applicant to provide access to firearms or ammunition to criminals or criminal organisations that raises concern: El-Chamy PSM v Commissioner of Police, NSW Police Force [2023] NSWCATAD 242 at [61]. It can also arise where a family member or partner who resides at the same premises who might take advantage of their domestic circumstances to gain access to firearms: Ryan v Commissioner of Police [2021] NSWCATAD 23 at [34].

131. I considered the case of Hamid v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 43 a case concerning the review of the imposition of a Firearms Prohibition Order. In that case Tribunal found it was the Applicant’s involvement as a romantic partner in two successive relationships with men who were prohibited from using or possessing firearms that created a danger to public safety (at [65]). According to the Tribunal the Applicant was unlikely to willingly cooperate with any plans of criminals to store firearms at her house but then said:

Given her connections, however, it is not impossible that she could be coerced into doing so. Persons involved with violent OCNs are unlikely to shrink from bringing pressure to bear upon her.

132. I was assisted in my reasoning by Mr Poberezny’s submission that the wording of section 11(4) is “may not” personally exercise continuous and responsible control. I agree that the Tribunal in finding there was reasonable cause to believe that an application may not personally exercise such control over firearms (emphasis added) is a lower threshold to meet.

133. The cases on reasonable cause are set out in Ly v Commissioner of Police, NSW Police [2004] NSWADT 115 at [41]-[44]. Citing his Honour Justice Emmett in Austrac Operations Pty Ltd (in liq) v New South Wales [2003] FCA 1013, the Tribunal said that a mere assertion that there is reasonable cause for a belief is not enough. The belief requires more than mere suspicion or conjecture but can fall short of a prima facie case. Ly stands for the proposition that Tribunal must be objectively satisfied from established facts of the matters set out in the relevant section. In the current case, I must be objectively satisfied from established facts that Mr Stankovic’s contact with Jamin means he may not personally exercise continuous and responsible control over firearms. According to the Tribunal in Ly, Parliament intended there be a lower threshold of satisfaction, that is, may not, because of the paramountcy of public safety in the principles and objects of the Firearms Act.

132. On balance, I reached the conclusion that Mr Stankovic did not have a close or continuing association with Jamin and so I am objectively satisfied that there is no reasonable cause to believe Mr Stankovic may not personally exercise continuous and responsible control of firearms.

133. I am therefore satisfied that Mr Stankovic is a fit and proper person and I am positively satisfied he can be trusted to have possession of firearms without danger to public safety or the peace.

Public interest

136. The public interest is a broad concept and incorporates issues beyond character. As the Tribunal said in Commissioner of Police v Toleafoa [1999] NSWCATAP 9 at [25]:

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

137. Considerations can include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.

138. Mr Stankovic’s genuine reason for seeking a firearms licence is target shooting. The pursuit of a hobby or interest activity is not itself something that provides any broader benefit to the public and so must be considered a private interest. As such it cannot outweigh the public interest including the public’s right to safety: Kammoun v Commissioner of Police, NSW Police Force [2021] NSWCATAD 273 at [97].

139. I considered Mr Stankovic’s traffic record. An applicant’s traffic record is a relevant consideration in determining whether it is in the public interest that they be issued with a firearms licence: Lee v Commissioner of Police [2020] NSWCATAD 144 at [97].

140. In Tannous v Commissioner of Police [2011] NSWADT 116, Judicial Member Huntsman observed that a court would regard traffic offences as different to criminal offences: [32]. The facts in that case were that Mr Tannous had not only driven twice while his licence was cancelled, he was then charged and convicted with driving whilst disqualified, all within a short period of time. The Judicial Member concluded that this conduct “does indicate an inability to appropriately and seriously consider and observe legal obligations which are imposed for public safety reasons, and further indicates a lack of responsibility for public safety”: at [32].

141. In Tannous, Judicial Member Huntsman was concerned that Mr Tannous’ repeated breaches of traffic laws and, in particular, the requirement that drivers be licenced “which is aimed at ensuring that drivers of vehicles observe traffic safety laws and are safe and competent” indicated “a disregard for a regulatory scheme aimed at ensuring public safety” (at [37]). Mr Tannous had drug possession convictions and also failed to comply the requirement to notify of his change of address and safe storage location of his firearms. The Judicial Member said at [33]:

The question for the Tribunal is whether viewing the Applicant's conduct as a whole, the Tribunal is concerned that the Applicant's breaches of the criminal and traffic laws, and his failure to comply with the requirements of the firearms legislation in relation to firearm storage, indicate a lack of regard for law and public safety. If I am so satisfied of such a lack of regard for the law and public safety, then I would conclude that it was not in the public interest for the Applicant to hold a firearms licence.

142. I considered whether Mr Stankovic’s driving record led me to conclude he had a lack of regard for the law and public safety which would lead me to consider the issue of a firearms licence to him would be contrary to the public interest.

143. I note that there is a discretion in section 11(7) as to whether, in this case, I affirm the Commissioner’s decision to refuse Mr Stankovic a firearms licence. In determining how to exercise that discretion, I considered what result might best achieve the promotion of the principles and objects of the Firearms Act 1996 (refer to Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23]), including the promotion of safe and responsible storage and use of firearms.

144. Mr Stankovic has committed a significant number of speeding offences over the period 1980 to 2023. I consider that Mr Stankovic’s driving record and his continued offending despite the withdrawal of NSW visiting driver privileges in 2020 due to demerit points and the demerit point refusal of a licence in 2021 shows that he has not altered his driving behaviour. I agree with the Respondent’s submission that Mr Stankovic had breached the traffic laws throughout the time he has held a driver’s licence and that this has not stopped this behaviour, including when he committed the most recent driving offence in September 2023 when he knew that traffic history was of relevance to this proceeding.

145. I considered two decisions cited by the Respondent where traffic breaches might on their own be sufficient to, in this case, affirm the refusal of a licence application.

146. In Kammoun v Commissioner of Police, NSW Police Force [2021] NSWCATAD 273, the Applicant falsely denied that he had driven while using a mobile phone and also his driving record reflected at least 24 traffic infringements in the past seven years and his licence had been suspended a further seven times. The Tribunal decided that in those circumstances it was not in the public interest for Mr Kammoun to hold a firearms licence. The Tribunal said “by his own admission [Mr Kammoun] showed a disregard for regulations that govern his behaviour” (at [102]).

147. The case of Almasi v Commissioner of Police, NSW Police Force [2023] NSWCATAD 312 the Applicant had an extensive traffic history over a period of about 19 years as well as two convictions for driving while suspended and a s 10 dismissal for resist or hinder police. The Tribunal then said at [100]:

Having regard to the evidence adduced by the Applicant in the proceedings, I find that he has demonstrated very little insight into this conduct. In my view, the Applicant’s traffic history would of itself be sufficient to establish that the issue of a firearms licence to the Applicant would be contrary to the public interest.

148. Mr Stankovic partially acknowledged his responsibility for his poor driving record. I do not consider that Mr Stankovic lacks insight into his behaviour, as the Respondent as suggested.

149. I consider that the most notable aspects of Mr Stankovic’s traffic history are:

1. Mr Stankovic continued to commit driving offences despite receipt of numerous demerit points warning letters and the loss of NSW visiting driver privileges in October 2020 and the refusal of driver’s licence application on 22 March 2021 both due to demerit points.

2. The most serious speeding offences of driving more than 30 kilometres over the speed limit occurred approximately 20 years ago

3. The bulk of the offending was speeding offences, comprising nearly 75% of the NSW offences, and the most recent speeding offence was in December 2022.

4. The other offences concern disobedience of certain other driving rules such as obeying signs and using his mobile phone while driving.

5. On 15 September 2020 Mr Stankovic’s NSW visiting driver privileges were withdrawn for the period 20 October 2020 until 19 March 2021 due to demerit points and that when he applied for a driver’s licence he was refused because of demerit points until after 22 June 2021.

6. There were two instances when Mr Stankovic drove while unlicenced, one on 13 October 2020 when he had resided in NSW for more than three months and another in 1980 described as “unlicenced rider”.

150. I consider Mr Stankovic’s speeding offending to be persistent. However, in assessing the whole of his driving history I consider the offending to be at the lower end of the scale and on balance the breaches did not lead me to a level of satisfaction that Mr Stankovic showed a lack of regard for the law and public safety such that I should exercise the discretion to affirm the decision to refuse him a firearms licence.

ORDERS

1. The decision made by the Commissioner of Police on 1 June 2023 to refuse Mr Stankovic’s application for a Category A firearms licence is set aside.

2. A Category A firearms licence is to be issued to Mr Stankovic.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 28 March 2025