Tannous v Commissioner of Police

[2011] NSWADT 116

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Tannous v Commissioner of Police [2011] NSWADT 116
Hearing dates:	29 March 2011
Decision date:	26 May 2011
Jurisdiction:	General Division
Before:	Judicial Member Huntsman
Decision:	The decision is affirmed
Catchwords:	Firearms licence; traffic offences; failure to notify in accordance with regulations; whether in public interest; drug offences where dealt with by way of fine.
Legislation Cited:	Firearms Act 1996 Firearms Regulation 2006
Cases Cited:	Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 Brosowski v Commissioner of Police [2003] NSWADT 182 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179, (1979) 46 FLR 409 Bottomley v Commissioner of Police, New South Wales Police [2005] NSWADT 211
Category:	Principal judgment
Parties:	Raymond Stephen Tannous, Applicant Commissioner of Police, Respondent
Representation:	John B Haji & Associates, Applicant Bartier Perry, Respondent
File Number(s):	103292

REASONS FOR DECISION

Background

1. This was an application by Mr Tannous (the Applicant) for review of a decision of the Commissioner of Police to revoke the Applicant's firearm licence. The Applicant was issued with a category AB licence on 16 October 1997, to expire 11 December 2002. The Applicant successfully reapplied for the licence on two occasions, and the licence was issued again from 11 December 2002 to expire 11 December 2007, and again from 11 December 2007 to expire on 11 December 2012. The licence was suspended on 9 April 2010 and revoked on 27 September 2010. The decision to revoke the licence is the decision under review. On internal review of the decision the Respondent issued a statement of reasons dated 22 October 2010, affirming the original decision.

1. The statement of reasons of 22 October 2010 (internal review decision) detail that the Respondent had regard to the history of the Applicant's licence, namely that he previously held a One Shooter licence from 4 September 1992, he became licensed under the Firearms Act 1996; he has held a category AB firearms licence since 16 October 1997 for the genuine reason of recreational hunting/vermin control; the licence was suspended in 2001 due to an interim apprehended violence order and this suspension was subsequently lifted on 7 May 2002 when the interim order became unenforceable; on 19 March 2004 the Applicant's firearms safekeeping provisions were inspected and approved by police at his place of residence; on 25 March 2008 he was convicted of traffic offences of driving whilst suspended, exceed speed, drive with four or more unrestrained passengers; on 27 November 2008 he was convicted of the charge of drive whilst disqualified and placed on a good behaviour bond (section 9) and his licence was disqualified for two years concluding 23 March 2013; the police were unable to serve a suspension notice on 8 April 2010 because the Applicant had moved residence without notifying the firearms registry as required by section 69 of the Firearms Act 1996; the Applicant advised police he was intending to move to New Zealand; on 6 September 2010 the Applicant was convicted of two counts of possessing prohibited drug and fined $400. The statement of reasons indicates that the Respondent considered that the traffic record report for the Applicants driver's license demonstrated the Applicant's significant disregard for driving laws and regulations in New South Wales over an extended period.

1. The statement of reasons of 22 October 2010 indicates that the Respondent considered the underlying principle of the law in relation to firearms licensing, is to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage of firearms. The Respondent notes there are several provisions which allow the Commissioner to revoke a licence. Relevant legislative provisions are said to include section 24 (2) (d) of the Firearms Act 1996 (the Act) which states that a licence may be revoked for any other reason prescribed by the Firearms Regulation 2006; and clause 19 of the Firearms Regulation 2006 prescribes that the licence may be revoked if the commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence. The statement of reasons, records that the Respondent found it was not in the public interest for the Applicant to have a firearm licence. The Respondent notes that the principal issue is whether there is a risk to the safety of the public if a person retains their firearms licence. This is to be assessed, in the Respondent's view, by reference to a person's prior conduct. The Respondent states that the Applicant's criminal and traffic history indicates a lack of regard for the law and whilst the drug convictions are not prescribed offences, in the light of the penalty received from the court, they still attract serious weight as an indicator of the Applicant's lack of intention to abide by the law. The Respondent notes that the Applicant has not previously come to adverse notice for misuse of firearms, and also that on previous inspections by police, he was approved for firearms keeping, and no breaches were discovered. However, the Respondent considers that the traffic record gives indication of the Applicant's disregard of the law and raises concerns that the Applicant is not sufficiently responsible to be a firearms licence holder. The Respondent concluded that it was not in the public interest for the Applicant to have a firearms licence.

The Applicant's case

1. The Applicant provided a written statement and also gave oral evidence at the hearing. The Applicant also provided detailed written submissions in support of the application. The Applicant states that he was first issued with a firearms license in 1992 and when the law was changed in 1996 he handed in to police a semi-automatic. 22, and registered all other firearms which he owned. He has actively participated in the sport of hunting and assisted friends, who own farms, with vermin control. He considers himself a safe and responsible firearm owner. He has detailed knowledge of firearms safety, he has never had an accidental discharge or other safety issue with a firearm, he always keeps his firearms clean and in safe working order. The Applicant states that he has always taken firearms safety seriously, including his responsibility to ensure they are not lost or stolen; and that he has always complied with the safekeeping requirements as directed by the Commissioner of Police.

1. The Applicant stated, at paragraph 10 of his written statement, that he was aware of his responsibility to up-date his details with the Firearms Registry and that he contacted the registry in early March 2010 by telephone. He says he asked what he had to do in order to legally move his firearms into a container for shipping overseas. He says he was told that the firearms needed to be stored inside the safe, and the safe should be bolted to the container in three points where they cannot be undone from outside. He says he told the registry that he did not know where he was storing the container until it was shipped, whether it would be at his brother's house or the house of another family member. He says the registry lady did tell him to let them know where he put the container. He says he accepts he should have updated his details with the registry when he knew where the container would await shipping. He says he intended to do this but had a great deal going on in his life at the time, particularly relating to moving and selling his house. He intended to contact the registry but police seized his firearms. He later completed a change of address form with his lawyer and forwarded it to the registry in case police had not informed the registry. The Applicant's lawyer indicated during the hearing, on behalf of the Applicant, that in relation to the Applicant's obligations to inform the registry of his change of address, and location of firearms, he was two weeks overdue with one notification, and three weeks overdue with the other notification, and that he did intend to notify.

1. The Applicant states in his statement, in relation to driving, that he is aware he has a poor record which became worse after he received his first drivers license suspension. He says he lived by himself and needed to pay his mortgage, child support and other bills. He was employed as a carpenter and desperately needed to work. He says he understands he broke the law by driving unlicensed, and as a result of his offences, he has been forced to sell his house. "I would never drive unlicensed again and have not done so since the date of my last offence, 3 March 2008. I have not driven for a period of three years."

1. The Applicant concedes he was arrested for possession of prohibited drugs on 7 April 2010. "They were given to me by some people I was with. I do not normally use drugs. I will never use or possess illicit drugs again."

1. The Applicant was cross examined by the representative for the Respondent. During cross-examination the Applicant agreed with the suggestion that the traffic laws were for the safety of the public. He agreed that he had been charged with driving whilst his licence was cancelled, and in excess of the speed limit, on 30 December 2007; and that later on the same day, being 30 December 2007, he again drove unlicensed and on this occasion was also charged with having four or more unrestrained passengers in his vehicle. The Applicant responded that on the first occasion when he was caught speeding, this was on the Anzac Bridge and the speed limit had changed; on the second occasion he was pulled over at a random breath test and he had the four unrestrained passengers in his vehicle. He accepted under cross examination that by driving unlicensed he placed himself and the public at risk, and that he also did this by speeding and by having unrestrained passengers in his vehicle. He stated that on the first occasion on 30 December 2007 he was returning from a work job, on the second occasion, on that date, he was coming home from dinner with friends. He agreed that on 3 November 2008 he was also charged with driving without his licence and he says that on that occasion he was on his way to work.

1. The Applicant was questioned about whether he should have made other arrangements for travelling to work given that he had no driver's license. He said as a carpenter he had a lot of tools in his vehicle, which was a four wheel drive vehicle. On one occasion when he was found to be driving unlicensed he was taking his tools in his four-wheel drive to the worksite and had already planned to remain living at the worksite for a couple of weeks to avoid driving. It was put to him that somebody else could have driven his tools and vehicle to the worksite and the Applicant gave a few responses to this suggestion - he said he did not like many people driving his four-wheel-drive vehicle as not many know how to do so, he also said he does not know many people, and lives alone, so he has no one to drive his vehicle. It was put to the Applicant that he put his own interests first, rather than public safety, and that he placed his own convenience above public safety. The Applicant responded that he was desperate to work, he was scared of losing his house, he was desperate for employment, and in the end he did lose his house.

1. The Applicant was cross examined about his conversation by telephone with the firearms registry, as set out in paragraph 10 of his written statement. He maintained that he had been advised that he should place his guns, in the gun safe, bolted inside the container in three points and that he did this. He says he made enquiries about going to New Zealand and she told him to speak to the New Zealand Customs office and he did so and followed their directions (that he should bolt the guns at the front of the container so if Customs wanted to inspect they could readily do so). The Applicant was questioned about whether it was possible that he was told to contact local police about any new method of storage (such as in the container), the Applicant was initially firm in his evidence that he was not hold this, but later conceded it was possible that other information was given to him. However he also said that if he was told he should contact the police he would have done so.

The Respondent's case

1. The Respondent provided documentary evidence, as required by section 58 of the Administrative Decisions Tribunal Act, which was a bound volume of documents which included the Applicant's traffic record for his drivers license; firearms licence history; criminal record history; police records relating to various matters; record details relating to revocation notice dated 24 December 1993; notice of suspension served 9 April 2010; application to change personal details dated 16 April 2010 (form P658); notice of revocation dated 8 September 2008; internal review documents including documents from the Applicant's solicitor; internal review statement of reasons dated 22 October 2010; notice of application for review by the Tribunal lodged 23 November 2010. The Respondent also relied on detailed written submissions, which were supplemented by oral submissions at the hearing. The Respondent also submitted a written statement by a manager of the call centre for the Firearms Registry. This statement was admitted without objection on the basis of the parties' agreement that the statement indicated that it could be accepted that the conversation, as described by the Applicant in paragraph 10 of his written statement, may have taken place and the information which the Applicant states he received during that conversation, may have been given to him, but that it was also possible that further information may have been given to the Applicant during that conversation. On this basis the parties agreed that the statement could be admitted into evidence and that the maker of the statement was not required for cross-examination.

1. Included in the Respondent's documents are police records, including a criminal record, and Police Facts sheets relating to the court appearances for driving whilst licence suspended (two counts); exceed speed; drive with four or more unrestrained passengers; drive whilst disqualified from holding a licence; possess prohibited drug (s10 Drug Misuse and Trafficking Act) (two counts). In relation to the drug offences the Police Facts sheet states that on 7 April 2010 the police executed a search warrant at a premises and they searched the Applicant and found prohibited drugs upon his person, which upon subsequent analysis, were found to the methyl amphetamine and cocaine. The criminal record indicates that for these offences the Applicant received a $400 fine. The criminal record indicates that on 3 November 2008 the Applicant received a good behaviour bond, section 9, for the offence of driving whilst disqualified from holding a licence, and was also sentenced to a further period of disqualification of two years commencing on 24 March 2011 and concluding on 23 March 2013. Previously, on a court appearance in March 2008 for the offences of drive whilst licence suspended (two counts) he received a fine and on the first count one year's disqualification of his drivers license commencing in March 2008, and on the second count two years disqualification of his drivers license commencing on 24 March 2009. The traffic record report for the drivers license indicates that prior to these traffic offences for which he appeared in court, he had a number of traffic infringements issued for exceed speed, disobey traffic lights, so that he received a demerit point suspension of his licence for six months commencing on 20 November 2007.

1. As discussed above the Respondent provided a written statement by a manager of the call centre for the firearms registry. She states that there is no record of the phone call made by the Applicant. She states that the usual practice where a caller is a licence holder is to record the call, however this is not necessarily done with general enquiries by non-licence holders. She states that advice that would have been given in early March 2010 in relation to use of a shipping container would have been to ensure storage is as per legislative requirements and would have provided a recommendation that the person contact local police to view the facility to ascertain that the storage meets the requirements for the licence. If a call is received by the registry that a person is proposing to change storage or residential address they are advised of their legislative requirements, and the prescribed periods in which to notify of the change. There is no record of enquiries by the Applicant or advice to the registry of the change of the storage facility. As noted above in these reasons for decision the parties' representatives agreed that this statement could be admitted into evidence on the basis that it was accepted that the Applicant may have had the conversation which he says he had in paragraph 10 of his written statement and that it was possible that further conversation was also had. The Applicant was firm in his evidence that he was not advised to contact local police during the phone call, however under cross examination he did concede that it was possible that such a recommendation was made to him, however he also firmly stated his belief that if such a recommendation was made to him he would have acted upon it, as he did when advised to contact New Zealand Customs.

Submissions by the parties' representatives

1. Detailed written submissions, which were supplemented by oral submissions at the close of the hearing, were made by the legal representatives for both parties. The written submissions are retained on the Tribunal file and may be referred to, those submissions will not be summarised in their entirety in these written reasons for decision. However the submissions made, in written and oral form, have been carefully considered by the Tribunal in determining this matter. The Applicant's representative made comprehensive submiss ions as to how the Tribunal should consider the traffic offences, the Applicant's traffic record, and the criminal offences under the Drug Misuse and Trafficking Act. The submissions also referred to the way those offences are viewed under the Firearms Act 1996. The Applicant's submission also noted some inconsistencies in the reasoning behind the original decision and the internal review decision in relation to the way that criminal offences and traffic offences were considered by the Respondent. The Applicant submits that there is a distinction between traffic offences and criminal offences and notes the kind of offences that are prescribed under clause 5 of the Firearm Regulation. The Applicant also submits that the commission of the criminal offences under the Drug Misuse And Trafficking Act is not sufficient to lead to a revocation of licence without further material to indicate that it would not be in the public interest that the Applicant to retain his licence. In relation to the public interest the Applicant submits that the finding of the Respondent in this regard cannot be supported on the evidence in this matter.

1. The Respondent provided written submissions and referred to relevant case law. The Respondent notes that the Applicant has not shown sufficient regard for sanctions imposed by the law in respect of his driving licence and has in doing so placed the safety of the public, and himself, at risk. He has also failed to comply with firearm licensing requirements in relation to notification of change of address and storage location of his firearms which is a significant disregard of his firearm licensing obligations. Further, he was recently convicted of criminal offences for possession of prohibited drugs. Whilst those offences do not result in mandatory disqualification of his firearm licence, they do warrant severe consequences in terms of his firearm licence. The Respondent further submits that the conduct of the Applicant in possessing prohibited drugs demonstrates disregard for law and inability to act safely. The Respondent submits that section 3(1) of the Firearms Act 1996 provides that firearm possession is a privilege conditional on the overriding need to ensure public safety and to improve public safety, and strict controls on the possession and use of firearms are imposed in the interests of public safety. The Respondent submits that the strict licensing requirements require the licensee to provide the Commissioner with particulars of change of address within seven days after the change occurs (section 69 of the Act); and if the premises where the firearms are stored is changed, the address of the new premises must be notified to the Commissioner, in writing, within 14 days after the change occurs. (Clause 16 Firearms Regulation). It is noted by the Respondent that the failure to comply with the strict licensing requirements can lead to the imposition of a penalty, being 50 penalty units. The Respondent made legal submissions as to the relevance of the sentence imposed for the Applicant's drug convictions being a monetary fine, noting that criminal sentencing is a balancing exercise considering the conduct that gave rise to the offence, personal and mitigating factors relevant to the offender, in determining the appropriate sentence. The Respondent submits that in licensing matters the relevant focus is the conduct of the Applicant and not the whole circumstances of the case, or the personal and mitigating factors which would ordinarily be taken into account by a sentencing judge. Legal authority for this position is cited in the Respondent's submissions. The Respondent states that the Applicant's conduct should not be viewed in any favourable light because of the imposition of a fine, or the small size of the fine. Looked at in the licensing context, the conduct of the Applicant over the last few years demonstrates that it is not in the public interest that he maintains his firearms licence, in the Respondents view.

1. In regard to the weight to be given to traffic offences the Respondent states that it is the conduct of the Applicant which is relevant and how that conduct impacts on the public interest. There is a broad discretion to revoke a licence when it is in the public interest to do so. The Respondent further submits that it is the interest of the public or the whole community, which is considered in assessing public interest, not the private interests of the Applicant. The Respondent submits that in the present case, the public would not want the Applicant to retain a firearms licence in circumstances where he has, in a few years, disobeyed licensing requirements and laws relating to traffic safety; been convicted of drug related offences; and has not complied with important firearm licensing requirements. The Respondent submits that the public interest requires that all licensees be aware of, and comply with, the legislative requirements: the public needs to be confident that those who are afforded the privilege of a firearms license actually comply with licensing requirements.

1. The Respondent submits that the decision should be affirmed and states the Applicant, through disregard of traffic licensing and safety laws in 2007 and 2008 has demonstrated an appreciable disregard for, and lack of appreciation of, public safety and licensing requirements. It is submitted that the Applicant has demonstrated he cannot comply with strict firearm licensing requirements to notify the Respondent of the change of address and storage location. It is stated that the Applicant has shown disregard for the criminal law by being in possession of prohibited drugs and that all these matters affect the confidence which could be held in the Applicant's ability to act safely. The Respondent submits that there is no persuasive and relevant consideration to enable the Applicant to retain his licence.

Discussion of law and evidence and the Tribunal's findings

Relevant Legislation

1. Firearms Act section 3:

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

(c) to facilitate a national approach to the control of firearms.

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

(a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,

(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 sales of firearms,

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

(f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.

Firearms Act section 24 - Revocation of licence

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

(1A) The Commissioner must revoke a licence that is held for the purpose of employment as an armed security guard (within the meaning of the Security Industry Act 1997) if:

(a) the licensee has failed to undertake any firearm safety training required under this Act or the regulations, or

(b) in the case of a licensee who holds a class P1F licence or a visitor permit authorising the licensee to carry out security activities of a kind authorised by a P1F licence under the Security Industry-the P1F licence or visitor permit is revoked under that Act or the licensee contravenes any condition of the firearms licence under this Act.

(2) A licence may be revoked:

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

(b) if the licensee:

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

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

(iii) contravenes any condition of the licence, or

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

(c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or

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

1. Clause 19 of the Firearms Regulation 2006 stipulates that the Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence. Section 11 of the Act sets out general restrictions on the issue of firearms licenses. The relevant provisions are subsections 3(a), 5(b) and (d), and (7), as follows:

"(3) A licence must not be issued unless:

(a) 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, and ...

(5) A licence must not be issued to a person who:

(b) has, within the period of 10 years before the application was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or ...

(d) is subject to a good behaviour bond, whether entered into in New South Wales or elsewhere, or ...

(7) Despite other provisions in 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

1. Section 24(2)(a) of the Act prescribes that the Commissioner may revoke a firearms licence for any reason for which the licensee would be required to be refused a licence of the same kind.

1. Section 24(2)(b)(ii) of the NSW Firearms Act 1996 (the Act) provides that the Commissioner may revoke a firearms licence if the licensee contravenes any provision of the Act or the Firearms Regulation 2006 (the Regulation), whether or not the licensee has been convicted of an offence for the contravention.

1. Section 19(2)(a) of the Act stipulates that a licensee must comply with the relevant safe keeping and storage requirements is a condition of the granting and retention of a licence.

1. Section 24(2)(b)(iii) of the Act provides that the Commissioner may revoke a firearms licence if the licensee contravenes any condition of the licence.

1. With limited exceptions, section 75(1)(c) of the Act provides a person may apply to the Tribunal for a review of the decision to revoke a licence.

1. Section 63 of the Administrative Decision Tribunal Act 1997 ("the ADT Act") provides that in determining an application for review the Tribunal 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 restricted to a consideration of the material that was before the Commissioner, 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 179; (1979) 46 FLR 409.

1. A frequently used phrase is that, when conducting a review, the Tribunal 'stands in the shoes of the decision maker' and exercises the same functions and powers. The Tribunal is therefore constrained in its powers to those held by the decision maker.

1. Section 63(3) of the ADT Act provides that in determining an application for the review of a reviewable decision, the Tribunal may decide:

(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

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

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

Discussion and findings

1. The Tribunal's role is to decide what the correct and preferable decision is having regard to the material then before it. The Respondent contends that it is not in the public interest for the Applicant to hold a licence. It is necessary to consider that issue. A discussion of relevant case law was set out by the Tribunal in the case of Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276:

69 The Applicant's individual interest in retaining his licence must be subordinate to the public interest in ensuring public safety. This position is supported by the decision of Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 where it was stated at 681:

"The purpose of the reference to 'public interest is to ensure that private interests are not only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation."

70 In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at paragraph [25], the Appeal Panel said that the 'public interest' "is an inherently broad concept giving [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual".

71 There is discretion with respect to whether to revoke the licence in this case. The Tribunal has previously found that any discretion must be exercised to promote the objects of the firearm legislation: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23] and the discretion is to be exercised in clear preference to the public interest than an individual's private interests. That view has been followed in numerous decisions and I agree that it is the correct approach to be taken in this matter.

72 In Wilkinson v Commissioner of Police, New South Wales Police Service [2002] NSWADT 59 Deputy president Hennessy stated at paragraph [25]

25 As the Firearms Act does not list factors which a decision maker must take into account when exercising a discretion about revocation, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act. ...

73 A firearm licence is a privilege and not a right. Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them: Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75 at paragraph [25].

74 The underlying principles of the Act stated in section 3(1) emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, at paragraph 28, Deputy President Hennessy said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk".

1. The likelihood of risk is to be assessed by reference to relevant prior conduct: Brosowski v Commissioner of Police [2003] NSWADT 182 at [41].

1. In the present case three main areas of objection to the Applicant retaining his licence were relied upon by the Respondent: firstly, the Applicant failed to comply with the requirement of his licence to notify of change of address and change of storage location of his firearms; secondly it is said that his recent traffic offences indicate a lack of proper regard for public safety; thirdly, the recent convictions for drug offences are said to indicate a lack of regard for the law and to further indicate that it is not in the public interest for the Applicant to hold a firearms licence.

1. The Applicant does not dispute that he failed to notify of his change of address and change of location of storage of his firearms. He says this was due to an omission due to a lot going on in his life at that time. This is not a case where the Applicant expresses a disregard for firearms safety, it is clear that he has a history of safe storage of firearms. The Tribunal is required to look at the Applicant's conduct as a whole, in the context of the firearms legislation, and decide whether it is in the public interest for the Applicant to hold a firearms licence at this time. In relation to the Applicant's failure to comply with storage requirements, he removed his firearms from his place of residence and stored them in a shipping container, awaiting shipping. It is not contended by the Respondent that the firearms were stored carelessly in the container and the Tribunal has no basis for rejecting the Applicant's evidence that the firearms were carefully bolted inside the container. However, there is no clear evidence presented by the Applicant that the firearms in the shipping container were unable to be accessed by others or that the Applicant maintained sole control. However, there is also no evidence indicating that others could have access to the firearms. The Respondent has not presented evidence that the storage in the container was unsafe, rather the Respondent relies on the Applicant's failure to comply with legislative requirements in relation to notification of his residential address and location of storage of firearms.

1. The Applicant submits that a distinction should be drawn between traffic offences and other criminal offences in assessing his conduct. I accept that it is generally accepted that a traffic infringement would be viewed differently to a criminal conviction by a court. However, in the Applicant's case his traffic record includes driving whilst disqualified by a court, this is a more serious traffic offence than driving whilst a licence is cancelled. Even if I were to put to one side that his traffic record includes the offence of driving whilst disqualified, it is of concern to me that the Applicant, repeatedly, in close proximity in time, drove whilst not legally permitted to do so. Even after being charged with driving whilst cancelled, the Applicant drove again within a matter of hours sustaining a second charge of driving whilst cancelled. He was then, in a relatively short period of time after driving on two occasions whilst his licence was cancelled, charged and subsequently convicted with driving whilst disqualified. I consider that this course of conduct by the Applicant in relation to traffic offences does indicate an inability to appropriately and seriously consider and observe legal regulations which are imposed for public safety reasons, and further indicates a lack of responsibility for public safety.

1. In relation to the convictions for possession of prohibited drugs (methyl amphetamine and cocaine) I accept that the criminal record indicates that these were dealt with relatively leniently by the court, whereby a fine was imposed. Because of the lenient penalty the offences do not attract a mandatory revocation of the Applicant's firearms licence, however, it is clear that the Tribunal must still consider the offences seriously and carefully, in the context of the Applicant's firearms licence. 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.

1. The overriding principle of the Act is public safety. The Act confirms that firearm possession and use is a privilege conditional on public safety.

1. In the case of Bottomley v Commissioner of Police, New South Wales Police [2005] NSWADT 211 the Tribunal observed:

Nevertheless, I am satisfied that his conduct indicates a lack of attention to the storage requirements of the Act. In my view, the Commissioner is rightly concerned that all licensees have an appropriate level of understanding and appreciation of these requirements. While I am satisfied that Mr Bottomley's failures are on the lower end of the scale of firearm offences, they evidence an attitude that is still significant.

19 One of the underlying principles of the Act is the improvement of public safety by imposing strict controls on the possession and use of firearms, and promoting the safe and responsible storage of firearms. Ensuring that only permitted firearms are in the possession of licensees and that those firearms are stored in a safe and secure manner decreases the likelihood that they may be used in committing serious offences against the community. It is clear from the legislation that Parliament has identified these matters as central and critical objectives of the legislation. Those principles and objectives have been reinforced in numerous decisions of this Tribunal. Mr. Bottomley's conduct must be viewed with reference to them. Parliament did not leave the matter of the manner in which firearms are to be stored to the discretion of licence holders but instead elected to impose detailed and prescriptive requirements on all licences.

1. Section 3 of the Act, makes clear that Parliament intends that compliance with the regulatory scheme in relation to storage of firearms is an essential component of the privilege extended to a person licensed to possess a firearm. Section 3(1)(ii) provides that an underlying principle of the Firearms Act is to improve public safety by promoting the safe and responsible storage and use of firearms; further, section 3(2) states that the object of the Act includes ensuring that firearms are stored and conveyed in a safe and secure manner. As noted above, in the present case, the Respondent has not contended that the Applicant's firearms were stored unsafely, rather the Respondent relies on the lack of safety inherent in the Applicant's failure to comply with storage requirements imposed by the Firearms Act and Regulation, and/or lack of ability to comply with/have regard to laws relating to public safety.

1. I am satisfied, when I view the Applicant's conduct as a whole, that it is not in the public interest for the Applicant to hold a firearms licence. I consider that the Applicant's repeated breach of traffic laws and regulations aimed at ensuring public safety (in particular, the breaches of the requirement that drivers of motor vehicles be licensed, which is aimed at ensuring that drivers of vehicles observe traffic safety laws and are safe and competent) indicates a disregard for a regulatory scheme aimed at ensuring public safety. The firearms regulatory scheme, and licensing scheme, focuses primarily on public safety and I consider it relevant that the Applicant has failed to comply with requirements of the firearms licensing scheme in relation to firearms storage, and that this follows on his conduct of repeatedly breaching traffic laws and regulations aimed at public safety. In recent years the Applicant has been before the courts for the breaches of regulations and laws aimed at public safety in relation to his driver's license, and has also been before the court for possessing prohibited drugs. I am satisfied that the evidence in this matter indicates a course of recent conduct by the Applicant which has shown disregard for laws which protect public safety and a lack of compliance with the law generally.

1. I consider that this course of recent conduct, when I view the Applicant's conduct as a whole, which includes failures to comply with the requirements imposed by the Firearms Act and Regulation, indicates that it would not be in the public interest for the Applicant to hold a firearms licence. It is not in the public interest for a person to be licensed to possess a firearm, where the person does not have proper regard to laws and regulatory schemes which seek to ensure public safety. As such the decision under review, to revoke the Applicant's firearms licence, must be affirmed. It may be that after a period of sustained behaviour indicating a demonstrated capacity over a period of time to observe laws and regulations relating to public safety, that the Applicant could re-apply for a licence. However, at the current time, for the reasons detailed above, I am not satisfied that it is in the public interest for the Applicant to be licensed to possess a firearm, and, on the evidence, the correct and preferable decision is for the Applicant's firearms licence to be revoked.

1. For the reasons detailed above the Tribunal affirms the decision under review.

Decision last updated: 26 May 2011