Tobjian v Commissioner of Police, NSW Police Force

[2023] NSWCATAD 213

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Tobjian v Commissioner of Police, NSW Police Force [2023] NSWCATAD 213

Hearing dates:

10 July 2023

Date of orders:

08 August 2023

Decision date:

08 August 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Griffin, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

ADMINISTRATIVE LAW – Firearms – Public Interest

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Firearms Act 1996 (NSW)

Cases Cited:

AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

Barlow v Commissioner of Police, NSW Police Force [2003] NSWADT 254

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

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16

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

Director of Public Prosecutions v Smith [1991] 1 VR 63

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77

Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218

Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89

McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354 at 357

Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206

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

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

Sobey v Commercial Agents Board (1979) 22 SASR 70

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

Webb v Commissioner of Police, NSW Police Force [2004] NSWADT 110

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Youssef Tobjian (Applicant)
Commissioner of Police (Respondent)

Representation:

Applicant (Self represented)
Bartier Perry (Respondent)

File Number(s):

2023/00013009

Publication restriction:

None

REASONS FOR DECISION

Introduction

1. The applicant seeks administrative review of the internal review decision of the respondent dated 11 December 2022 which refused his application for a Category H Probationary Pistol Licence.

Background

2. On 8 February 2022 the applicant applied for a Probationary Pistol Licence. On 11 March 2022 the respondent refused that application. On 7 April 2022 the applicant sought internal review of that decision. On 11 December 2022 an internal review decision was made, affirming the refusal, pursuant to section 11(7) of the Firearms Act 1996 (the Act).

Evidence

3. The applicant tendered the following documents: two character references by personal friends dated in January 2023, a bank statement with a Deed of Indemnity attached dated 21 July 2006, a statement by Diana Falk clinical psychologist with a statement by the applicant attached dated 6 April 2023, a supplementary statement by the applicant dated 7 May 2023 and written submissions.

4. At the Tribunal hearing the applicant gave sworn evidence and was cross examined.

5. The respondent filed documents pursuant section 58 of the Administrative Decisions Review Act 1997 and written submissions, which include the applicant’s medical records and police records. The documents include a NSW police “Criminal History - Bail Report”, a “Traffic Record Report” and several police records known as COPS events. The criminal history report shows that in April 2001 the applicant was charged with assault occasioning actual bodily harm. He appeared in the local court on 29 October 2001 and received a bond for 2 years. The applicant was next charged with common assault on 6 March 2013 and that charge was dismissed by the court on 7 May 2013.

6. The Traffic Record Report contains 9 offences from 1998 until 2019, including 5 offences of exceeding the speed limit by more than 15 km/h.

7. There are several COPS events relating to domestic violence incidents involving the applicant, his then wife and her family. These include photographic evidence of bruising to his wife’s arm which was the substance of the 2013 assault charge. The charge was subsequently dismissed.

8. The police documents include a “Facts Sheet” for the 2001 assault occasioning actual bodily harm conviction. It describes the applicant hitting an apprentice working for him in a car repair shop. It includes a slap to the neck, whipping with a rolled-up rag to the face, spraying, and igniting, flammable liquid on the apprentice, placing him in a headlock, poking him in the ribs with a screwdriver, throwing him to the ground and threatening to kill him, and later hitting his knuckles with a spanner and grabbing his head and putting it near a car exhaust.

9. There is a COPS event for an incident in July 2006. It involves the applicant’s previous business partners. The business partners allege that the applicant attended their home late in the evening accompanied by another individual. It is alleged that the applicant and that third person, named Michael, demanded money from the applicant and threatened him with violence, including the production of a knife and a knuckle duster by Michael. The police were called and attended the premises. There is a police statement of what they observed. The police described the applicant and Michael leaving the premises together and departing together in a motor vehicle.

10. The medical records show the applicant was diagnosed in March 2020 with “mixed anxiety and depression” and that he suffers from “low back pain, mood swings with more depression and anxiety recently”. The applicant receives a Disability Support pension. In March 2023, his GP recorded that the applicant generally feels much better and referred him for a mental health care plan review. A report from Diana Falk, clinical psychologist, dated 6 April 2023 describes her treatment of the applicant. She states, “part of his recovery has recently involved his joining a pistol club, which I have encouraged, as it is an activity that makes minimal physical demands on him…His mood has been positive and stable for quite some time now... I do not consider him to pose a risk in having access to a firearm for sporting purposes. I believe he will demonstrate all appropriate care and responsibility in the handling of one”.

11. The applicant gave oral evidence under oath. He denied assaulting the apprentice. He said the apprentice was not performing his duties properly in the workplace. He said the apprentice made false allegations against him. In cross examination it was put to him that he had been found guilty of an assault occasioning actual bodily harm against the apprentice. He said,” yes but I didn't commit a crime”. The fact sheet containing the allegations was put to him, he said, “yes but I don't remember”. He was asked if he denied the facts as alleged. He said, “all lies. I sacked him and he wanted revenge."

12. The applicant was asked about the alleged incident involving threats to his former business partner. He said, “I did not know Michael, he was there, I never saw him again.” He said that Michael was making threats to his former business partner and that he was not involved in that. He said he did not arrange that. It was put to him that he just sat there and did nothing. He said, “I'm not Superman, it wasn't about me. Why should I get involved? It was about 5 minutes I saw him. They called the police for Michael to leave not me”. The police statement, that he left the premises in company with Michael, and they departed together in a motor vehicle was put to him. He said, “not true, I did not get in a car with Michael”. In his written submission, the applicant stated the former business partner was a problem gambler and had owed money to a “loan shark”, that Michael was there when he arrived and was making threats for repayment of that loan.

Applicant’s submissions

13. The applicant submitted the 2001 assault was all lies, that he had a witness who could prove that, but he was not allowed to appear. He submitted the police interviewed him for over 2 hours about the alleged threats with Michael but took no action because he was not complicit. He said in 2013 he and his wife had a few problems. He said his wife got an Apprehended Violence Order to get him out of the house, but it was dismissed. He said he regrets the Traffic Record matters but there had been nothing further since 2015, except for a 2019 offence of driving in a T-Way Lane which had been accidental. He said the past was not his fault and that shooting was changing his life in positive ways.

Respondent’s submissions

14. The respondent submits the applicant has a history of traffic offences, and violent and threatening behaviour, over many years, which he tries to minimise or even deny in the face of clear evidence. The respondent submits he displays no contrition or remorse for these matters even when the evidence was put to him in cross-examination. The respondent submits the evidence demonstrates a pattern of consistent conduct and character, at ages 28, 33 and 40 for example, that show it is not in the public interest for him to be granted a firearms licence.

Legislative framework

15. The general principles and objects of the Firearms Act 1996 are set out in s 3 which provides, relevantly:

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

16. Section 11 of the Act relevantly provides:

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

…

(7)  Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

Consideration and findings

17. Under s 63 of the Administrative Decisions Tribunal Act the Tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. The Tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77).

18. The Tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct (McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354 at 357). As the use of the word "may" in s 11(1) of the Firearms Act makes clear, the Commissioner has a discretion to issue a licence. The Act provides no explicit guidance on how that discretion should be exercised.

19. Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearm possession and use is a "privilege that is conditional on the overriding need to ensure public safety". Consistently with that approach, the Act confers on the respondent the ability to refuse a firearm licence in circumstances where it is considered that the holding of a licence is not in the public interest.

The public interest: section 11(7)

20. The expression “public interest” is not defined in s 11(7) or elsewhere in the Act, and a decision in relation to the public interest in this context is particularly informed by the underlying principles and objectives of the Act and the strict controls under the Act in relation to licensing. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the ‘public interest' is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. Public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].

21. The applicant requires a firearm to participate in sport pistol shooting which his psychologist says is good for him. Private interests, however, are not the only matters to be taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657 at 681. Consideration of public interest allows for matters going beyond an Applicant’s character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33]. The concept includes standards acknowledged to be for ‘the good order of society and for the well-being of its members’: Director of Public Prosecutions v Smith [1991] 1 VR 63. Accordingly, the applicant's genuine reason for holding a firearms licence, cannot not be given priority over the public interest.

22. Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) at [28] said that in terms of public safety, “the Tribunal must be satisfied that there is virtually no risk”, while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Although Ward was a case on the “fit and proper person” test, the principle in Ward has been held to apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at [23] and Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 at [77]. The question of risk is not to be viewed as requiring an Applicant to discharge an almost impossible burden of proving a near absolute negative, but, in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, but with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] – [66].

23. The principle in Ward is to the effect that the licensing regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. See also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36]. Since Ward, Hennessy DP has cautioned against applying that language in a mechanistic way: see AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].

24. In Webb v Commissioner of Police, NSW Police Force [2004] NSWADT 110 at [32], Montgomery JM, when considering the question of public safety, stated that, only real and appreciable risk needs to be taken into account and that minimal, fanciful or theoretical risk can be excluded from consideration.

25. In this matter, the degree of risk can be gleaned from the police records. The applicant disputes almost all of the facts as alleged in those records. He says he did not assault the apprentice in 2001 and that it was “all lies, I sacked him and he wanted revenge”. However, the fact is a court was satisfied the assault took place and he was found guilty. Five years later he was in financial dispute with a business partner. It is alleged he went to the partner’s home with a person who displayed a knife and ‘knuckleduster’ and demanded money and made threats of violence. The applicant denies acting in concert with this person and says he just happened to be present. However, the police record describes removing the applicant and this person and seeing them leave together and depart in a car together.

26. As to the Traffic Record, the applicant describes them as “minor speeding offences” and the domestic violence matters, including the alleged 2013 assault of his wife as being the result of brainwashing by her family. The fact is the record shows 5 charges of “Exceed speed limit by more than 15 km/h”. The COPS event in 2013 shows photographs of bruising to the applicant’s wife and her claims of his violence towards her. I do not accept these speeding offences are “minor” nor do I accept the applicant’s wife was ‘brainwashed’ into claiming he assaulted her.

27. The various police reports are spread over a period of 18 years from 2001 to 2019. There are repeated transgressions of the road traffic rules. A common thread is the applicant being at or involved in incidents of aggression and violence. The applicant denies any fault in respect of these incidents. I had the benefit of observing him give evidence and be cross examined. I am not satisfied that he was being wholly truthful in his evidence. He claims the apprentice made it all up out of revenge but when confronted with the recorded facts, he said he could not remember. He claims to have been an innocent bystander when Michael threatened his former business partner and to have had no involvement with Michael. However, the police reported seeing them leave together and depart in the same car. I find the applicant’s various claims denying fault, minimising his conduct, or blaming others to be implausible. I am satisfied the applicant has consistently demonstrated, over many years, impetuous behaviour, and a propensity to act with violence.

28. In all the circumstances, I am satisfied the risk of granting a firearms licence to the applicant is real and appreciable. I find it would not be in the public interest to grant a firearms licence to the applicant.

29. For these reasons, I find that sections 11(7) of the Firearms Act operate to exclude the applicant from being granted or holding a firearms licence.

Decision

The decision under review is affirmed.

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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: 08 August 2023