Sweet v Commissioner of Police, New South Wales Police Service

[2000] NSWADT 185

CITATION:	Sweet -v- Commissioner of police, New South Wales Police Service [2000] NSWADT 185
DIVISION:	General Division
PARTIES:	APPLICANT Brenton Sweet RESPONDENT Commissioner of police, New South Wales Police Service
FILE NUMBER:	003217
HEARING DATES:	13/11/2000, 11/12/2000
SUBMISSIONS CLOSED:	12/11/2000
DATE OF DECISION:	12/13/2000
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	Firearms Act - firearms licence - revocation of licence or permit - Firearms licence - revocation of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Firearms Act 1996
CASES CITED:	Herbohn v NZI Life Ltd [1998] QSC 122 (12 June 1998) WC Pointon v. Walkley [1951] S.A.S.R. 121 Kirby v. Leather [1965] 2 Q.B. 367 Kotulski v. Attard (1981) 1 N.S.W.L.R. 115
REPRESENTATION:	APPLICANT P Wiggins, solicitor RESPONDENT R Vellar, solicitor
ORDERS:	The Commissioner's decision to revoke the applicant's firearms' licence is affirmed.

Background

1 On 30 August 1999 the Commissioner of Police issued Mr Sweet with a Category H licence pursuant to the Firearms Act 1996 (the Act) for the “genuine reason” of target shooting. The administrator revoked the licence on 20 April 2000 following an incident involving Mr Sweet and Constable Atherton on 26 December 1999. On that day, Constable Atherton gave Mr Sweet two infringement notices, one for driving an unregistered vehicle and the other for driving an uninsured vehicle. Mr Sweet’s threatening conduct at the time led Constable Atherton to charge him with “intimidate police officer in execution of duty”. This charge was dismissed in the Local Court under s 32 of the Mental Health (Criminal Procedure) Act 1990. Under that section a Magistrate may take certain action, including dismissing the charge, if, among other things, the defendant is suffering from a mental condition for which treatment is available in a hospital.

Jurisdiction

2 Mr Sweet applied to the Tribunal for a review of the decision to revoke his Category H firearms licence. The Tribunal has jurisdiction to hear this application under s 75(1)(c) of the Act.

Reasons for revocation

3 The administrator relied on three reasons for revoking Mr Sweet’s licence. In summary these reasons were that:

· the Commissioner would have been required to refused Mr Sweet a licence of the same kind had he been applying for one on the ground that he believes that Mr Sweet may not personally exercise continuous and responsible control over firearms because of his intemperate habits or being of unsound mind;
· the Commissioner is of the opinion that Mr Sweet is no longer a fit and proper person to hold a licence; and
· the Commissioner considers that it is not in the public interest for Mr Sweet to continue to hold a licence.

4 The legislative provisions on which these grounds are based are set out in the Act and the Firearms (General) Regulation 1997 (the Regulations). Section 24(2) of the Act, so far as it is relevant, provides that:

A licence may be revoked:
(a) for any reason for which the licensee would be required to be refused a licence of the same kind, or
(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence,
(d) for any other reason prescribed by the regulations.

5 Clause 17 of the Regulations states that:

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

6 Section 11(4) of the Act states that:

Without limiting the generality of subsection (3)(a), a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of: . . .
(c) the applicant's intemperate habits or being of unsound mind.

Documentary evidence

7 The documentary evidence before the Tribunal consisted of:

· copies of relevant sections of the police file relating to Mr Sweet marked by tabs A to I;
· report of Dr Law dated 7 February 2000;
· report of Dr Law dated 16 February 2000;
· report of Dr Law dated 9 June 2000;
· report of Dr Law dated 26 October 2000; and
· police tape recording of conversation, reference WP 147a and WP 147b;
· letter from M Crowley, Senior Sergeant Queensland Police Service to the Manager, Firearms Registry, NSW Police Service dated 21 November 2000;
· NSW Police Service Target Shooting Club Approval re Auburn Pistol Club Incorporated; and
· Constitution of Auburn Pistol Club Incorporated.

8 Following the hearing, I listened to the police tape recordings of the conversation between Mr Sweet and Constable Atherton. The hearing was adjourned part heard in order for the evidence listed in the last three dot points above to be provided. That evidence related to a suggestion by the applicant’s representative that the correct decision was to place a condition on Mr Sweet’s licence that he not remove his pistol from the gun club where he is a member.

Oral evidence

9 Oral evidence was given by Constable Atherton, Mr Sweet and Dr Law.

10 Constable Atherton is a senior constable of police who gave evidence of the incident which took place on 26 December 1999. That evidence was consistent with the account of events as set out in the Fact Sheet at Tab B of the police file. In summary, Constable Atherton’s evidence was that he stopped Mr Sweet when he was driving his car and told him that he was recording the conversation. Mr Sweet objected but was told by Constable Atherton that he would continue to record the conversation. After questioning Mr Sweet, Constable Atherton wrote out two infringement notices, one for driving an unregistered vehicle and the other for driving an uninsured vehicle. While writing these notices, Constable Atherton said that Mr Sweet raised both his arms and clenched his fists and said, “I hate you bastards, I hate you cunts, I really hate you bastards.” Constable Atherton sought assistance from other police officers who attended the scene. Police officers asked Mr Sweet to provide a breath test and Mr Sweet complied with this request. Mr Sweet continued to threaten Constable Atherton saying that he would take him to court. Constable Atherton says Mr Sweet “shaped up” to him again with his fists clenched. Later Mr Sweet said to Constable Atherton, “If I see you around here any more, I’ll bloody hammer you.” At that point he was arrested for intimidating police. Constable Atherton said he was fearful for his safety.

11 Mr Sweet gave evidence that he is a Vietnam veteran and works as a part time taxi driver. He has never been convicted of a criminal offence.

12 Mr Sweet told the Tribunal that he had read the police fact sheet and largely agreed with the version of events as set out in that document. However, there were a number of points of disagreement. For example, Mr Sweet said that he clenched his left fist in anger while standing outside Constable Atherton’s vehicle but this happened on only one occasion and he did not raise his fists. He said that Constable Atherton had no compassion and would not listen to his explanations. He expected to be treated with more understanding especially as it was around Christmas time. Mr Sweet claimed that although he said “I would like to hammer you” he was provoked by Constable Atherton into making that comment.

13 Mr Sweet said that he only said, “I’m gonna take you to court” once. Mr Sweet could not remember whether he said, “You’d only bloody hit me for a thousand dollar tow fine, you gutless wonder you are, I’m gonna take you to court, I don’t care what that says.” Mr Sweet also said that Constable Atherton said “Merry Christmas, you silly old fart,” or words to that effect.

14 Mr Sweet is a member of the Auburn Pistol Club and owns his own pistol which he leaves at the club.

15 Dr Law has been a qualified psychiatrist since 1975. He has seen Mr Sweet on 12 occasions since January 2000. Dr Law’s assessment on the basis of these consultations is that Mr Sweet is suffering from post traumatic stress disorder after his service in Vietnam. The main symptoms are sleep impairment, bad dreams, episodic anxiety, spells of depressed mood and irritability. According to Dr Law, one of the symptoms of this disorder according to the Diagnostic criteria from DSM-IV is “irritability and outbursts of anger.” According to Dr Law’s report of 16 February 2000, it was that symptom that caused Mr Sweet to respond in the way he did when Constable Atherton spoke to him on 26 December 1999. Mr Sweet has never expressed to Dr Law any intention of hurting himself or others. Dr Law prescribed anti-depressants and small amounts of anti-psychotic medication to help him sleep and to relieve his anxiety.

16 Dr Law said that Mr Sweet told him that he regretted the incidence with the police and even though he was still angry about it on the first occasion he saw him, that anger had now dissipated. Dr Law concluded that Mr Sweet was mentally competent to pursue shooting activities within the area of a gun club. He was not confident enough in his behaviour to recommend that he be allowed unrestricted access to a firearm.

Findings of Fact

17 In relation to the incident on 26 December 1999, the tape recording shows that Constable Atherton’s evidence of the dialogue is more accurate than Mr Sweet’s. For example, contrary to Mr Sweet’s evidence, the tape reveals that he made the comment “I’m gonna take you to court” several times. Similarly, there is no evidence on the tape of any police officer saying “Merry Christmas, you silly old fart,” or any words to that effect, as alleged by Mr Sweet. The main discrepancy in the evidence which cannot be resolved by reference to the tape, was whether Mr Sweet raised his fists to Constable Atherton and, if so, how many times that happened. I accept Constable Atherton’s version of events that Mr Sweet raised both his fists on two occasions. The reasons for preferring this evidence are that Constable Atherton’s recollection of the dialogue was more accurate than Mr Sweet’s and Constable Atherton made a detailed written record of the incident shortly after it occurred. His evidence was straightforward and consistent with the account of events in the Fact Sheet and the tape recording of the conversation.

18 Mr Sweet said that he felt Constable Atherton provoked him. After listening to Constable Atherton’s evidence and the tape, there is nothing to suggest that Mr Sweet was justified in feeling provoked. Constable Atherton spoke to Mr Sweet in a direct and matter of fact style. The fact that Mr Sweet was given infringement notices for two offences close to Christmas and that Constable Atherton was not sympathetic to his situation, does not constitute provocation which would justify Mr Sweet’s threatening and abusive conduct. Similarly, there is no evidence that Constable Atherton did anything to justify Mr Sweet disliking him.

19 Despite these findings, I am satisfied that Mr Sweet was honest with the Tribunal and made a genuine attempt to recall the circumstances of the incident.

20 I accept Dr Law’s evidence in relation to Mr Sweet’s mental condition which was not challenged in any significant respect in cross examination. Dr Law’s opinion that Mr Sweet “is mentally (emotionally and cognitively) competent to pursue shooting activities within the area of a gun club” is a question which the Tribunal itself must decide. For this reason, even in the absence of any evidence to the contrary, I do not accept Dr Law’s opinion on that issue as determinative of the view I should take.

Reasons for decision

21 I will deal firstly with the ground on which the Commissioner relies relating to unsound mind. The Commissioner’s submission pursuant to s 24(2)(a) and s 11(4)(c) of the Act, was that he would have been required to refuse Mr Sweet a licence of the same kind had he been applying for one, on the ground that he believes that Mr Sweet may not personally exercise continuous and responsible control over firearms because of his intemperate habits or being of unsound mind. The Commissioner relied on a submission that Mr Sweet is of “unsound mind” in support of this ground. That term is not defined in the Act or Regulations and no submissions were made on the meaning of that phrase or why it was contended that Mr Sweet’s mental condition came within it.

22 In interpreting the phrase “unsound mind” the ordinary grammatical meaning of the phrase must be applied. “Unsound” is defined in the Macquarie Dictionary, 3rd edition, The Macquarie Library, as “not sound; diseased, as the body or mind.”

23 In Herbohn v NZI Life Ltd [1998] QSC 122 (12 June 1998) WC Lee J gives a useful exposition of the meaning of “unsound mind.” His Honour said that:

Mayo J. in Pointon v. Walkley [1951] S.A.S.R. 121 at 125, when concerned with the meaning of "unsound mind" for the purposes of a limitation statute . . . said:-

"`Unsound' is the anthesis of `Sound'. `Sound', when used in connection with body or mind, denotes the presence of perfect health or, putting it another way, the absence of all defects other than those that are trivial. A sound person is one without the sign of disease, malady or unhealthy abnormality.

When seeking to ascertain the meaning of the words "unsound mind" in a statute, they must be construed in relation to the subject matter with which the statute is dealing and their place within it: Kirby v. Leather [1965] 2 Q.B. 367 per Lord Denning M.R. at 383 where the Master of the Rolls said that for the purposes of that statute, a person is of unsound mind if he is incapable of managing his affairs as a reasonable man would do; King v. Coupland. So also with the expression "mental condition" which, according to Slattery J. in Kotulski v. Attard (1981) 1 N.S.W.L.R. 115 at 118 was "meant to cover the mind's activities in all its aspects, including the ability to form a rational judgment, or to exercise will power to control physical acts in accordance with rational judgment".

24 The only evidence of Mr Sweet’s mental state is Dr Law’s oral evidence and his report of 16 February 2000. In that report, Dr Law stated that Mr Sweet was suffering from a “mental condition, namely a flare-up of his post traumatic stress disorder.”

25 The first question is whether Mr Sweet post traumatic stress disorder amounts to “unsound mind” given the purpose of the legislation. Mr Sweet has a recognised mental condition which can be regarded as a mental disorder. It is not trivial in its nature.

26 One of the principles of the Act, as set out in s 3(1)(a), is

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

27 The term “unsound mind” must be interpreted in the context of this principle. To be of “unsound mind” a person’s mental condition must at least have the potential to put public safety at risk if that person has the possession or use of a firearm. One of the symptoms of post traumatic stress disorder as outlined in diagnostic criteria in DSM-1V, is “irritability or outbursts of anger”. Taking into account these findings, post traumatic stress disorder fits within the definition of “unsound mind” in the Act.

28 The next question is whether the Commissioner made the correct and preferable decision in revoking Mr Sweet’s licence on the basis that he had reasonable cause to believe that Mr Sweet may not personally exercise continuous and responsible control over firearms because of he is of “unsound mind.” Because the decision under review relates to the revocation of a licence and not to an application for a licence, the Commissioner has a discretion to revoke or not to revoke the licence on this ground.

29 Mr Wiggins, on behalf of the applicant, submitted that revocation was not the correct and preferable decision. Instead of revoking the licence, it would have been preferable for the Commissioner to place a condition on the licence. According to Mr Wiggins, the condition should have the following elements:

· Mr Sweet can only participate in shooting activities at the Auburn Pistol Club; and
· Mr Sweet must not remove his pistol from the premises of the Auburn Pistol Club.

30 These conditions would prevent Mr Sweet from participating in any competitions outside the club and would also prevent him from removing the pistol in order to sell or repair it. Repair services are apparently available at the club. Mr Wiggins submitted that it would be appropriate to impose such a condition for a period of 2 years.

31 The evidence of Dr Law suggests that in the context of a licence for target shooting at a club, there is very little if any risk that Mr Sweet will not personally exercise continuous and responsible control over firearms. He was not confident enough in his behaviour to recommend that he be allowed unrestricted access to a firearm.

32 Even if it is accepted that Mr Sweet would use a firearm responsibly at a gun club, placing a condition on his licence that he leave the gun at the club is virtually unenforceable. There is nothing to prevent him from removing the pistol from the premises. It would not be practical or fair on the club to place any condition on their licence that Mr Sweet not remove the pistol from the premises. The club cannot be expected to monitor Mr Sweet to the extent necessary to ensure that he does not remove the pistol.

33 Dr Law’s opinion was that Mr Sweet should not be allowed unrestricted access to a firearm. Given that any condition of the kind suggested by Mr Wiggins would not, in a practical sense, prevent unrestricted access to a firearm, I am not satisfied that it would be preferable to grant the licence subject to the conditions suggested. Mr Sweet fits within the definition of being of “unsound mind.” Given Mr Sweet’s aggressive behaviour when pulled over by police and Dr Law’s evidence that he should not be allowed unrestricted access to firearms, the Commissioner has made the correct and preferable decision in revoking Mr Sweet’s licence.

Orders

34 The Commissioner’s decision to revoke the applicant’s firearms’ licence is affirmed.