Vargovic v Commissioner of Police, NSW Police Force
[2017] NSWCATAD 336
•17 November 2017
|
New South Wales |
Case Name: | Vargovic v Commissioner of Police, NSW Police Force |
Medium Neutral Citation: | [2017] NSWCATAD 336 |
Hearing Date(s): | 13 March 2017 and 14 July 2017 |
Date of Orders: | 17 November 2017 |
Decision Date: | 17 November 2017 |
Jurisdiction: | Administrative and Equal Opportunity Division |
Before: | K Ransome, Senior Member |
Decision: | (1) The decision to revoke the applicant’s Category AB firearms licence is set aside. |
Catchwords: | FIREARMS ACT – firearms – revocation of licence – contrary to the public interest – psychological state of applicant – competing evidence |
Legislation Cited: | Firearms Act 1996 |
Cases Cited: | Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) ALR 657 |
Category: | Principal judgment |
Parties: | Vladi Vargovic (Applicant) |
Representation: | In Person (Applicant) |
File Number(s): | 2016/00378340 |
Publication Restriction: | Section 64 of the Civil and Administrative Tribunal Act 2013 applies to the material filed by the respondent on a confidential basis, to the documents produced under summons by G Dale and marked “Confidential”, to those paragraphs of these reasons identified as [Not for publication], to the evidence given in private before the Tribunal and to the record of that part of the proceedings conducted in private pursuant to s 49. That material is not to be released to either the applicant or to the public. |
REASONS FOR DECISION
This is an application by Mr Vladi Vargovic seeking review of a decision by the Commissioner of Police, NSW Police Force to revoke his category AB firearms licence. Mr Vargovic applied for the licence in November 2013 and the licence was issued on 13 March 2014 under the Firearms Act 1996 (the Firearms Act). The licence was suspended on 12 July 2015 and revoked on 24 March 2016, a decision which was affirmed on internal review on 12 September 2016.
Background
Mr Vargovic suffered a lower back injury at work in 2004. He ceased work in 2011 and was on workers’ compensation through WorkCover. He suffered from chronic pain and had surgery in May 2015. He had further surgery in December 2016. He remains on pain medication, but at a lower dose than previously.
Mr Vargovic states that in 2011 he suffered from chronic pain and wanted help with coping with his long term injury. He said that he asked his doctor, Dr Gladman, to refer him to someone who could help. In September 2011 Dr Gladman referred Mr Vargovic to Dr Gregory Dale, a psychologist. Between September and December 2011 Dr Dale saw Mr Vargovic on seven occasions. There were three further consultations in February 2014, one in August 2014 and a final one on 9 July 2015.
Following the consultation on 9 July 2015, Dr Dale made a notification to the NSW Police Force and the Firearms Registry under s 79 of the Firearms Act. Section 79 of the Firearms Act states that, if a health professional is of the opinion that a person to whom he or she has been providing professional services may pose a threat to public safety or their own safety if in possession of a firearm, the health professional may inform the Commissioner of Police of that opinion. The notification is dated 12 July 2015 and in it Dr Dale states “Mr Vargovic made statements during consultation that could be interpreted as his intent to use firearms to cause harm to others”. It was this notification that led to the suspension of Mr Vargovic’s firearms licence.
After the licence was suspended, Mr Vargovic was required to provide a medical assessment to the Firearms Registry. He provided an assessment by Dr Jeff Swift, a psychiatrist. During the internal review process Mr Vargovic provided a report from a psychologist, Mr Michael Kruger-Davis. Ultimately, the licence was revoked.
The hearing
The Tribunal heard evidence at the hearing from Mr Vargovic, Dr Dale and Mr Kruger-Davis. Dr Dale provided evidence in open session and on a confidential basis in the absence of Mr Vargovic. Mr Vargovic is aware that a confidential session took place but he is not aware of the information that was presented. The Tribunal also had before it a range of documents, some of which are confidential and have not been made available to Mr Vargovic.
Dr Dale’s evidence
Dr Dale told the Tribunal that when Mr Vargovic first came to see him in September 2011 he administered what is called a DASS test which measures levels of depression, anxiety and stress. He said Mr Vargovic had severe anxiety. Dr Dale said that people with such levels of anxiety can see threats and danger in situations where other people wouldn’t and are more likely to react to such threats using whatever means they have.
Dr Dale did not administer the test again and could not say whether Mr Vargovic still has the same level of anxiety. He told the Tribunal he could not give an assessment of Mr Vargovic’s current mental state.
Dr Dale said that after 2011, he did not see Mr Vargovic for some time. He then saw him three times in early 2014, once in August 2014 and once in July 2015. He thought Mr Vargovic was getting worse, not better, and that his stress and anxiety levels were going up. Dr Dale’s notes record that when Dr Dale saw Mr Vargovic on a number of occasions in 2011 he was agitated, sometimes affected by pain medication and angry with his former employer and the insurer, particularly when he was refused surgical intervention.
Dr Dale said that when he saw Mr Vargovic on 21 August 2014, Mr Vargovic made references to “getting a gun” and said “I’m so angry I could become a mass murderer” and “I could understand why people do that”.
[Not for publication]
Dr Dale said that when he next saw Mr Vargovic on 9 July 2015, Mr Vargovic said that “he needed to get four guns”. [Not for publication]
Dr Dale said that, when considered in the light of Mr Vargovic’s statements in August 2014, his perception was that Mr Vargovic intended to do something and now had the means (i.e. the guns). It was following this consultation that Dr Dale made the s 79 notification referred to above.
[Not for publication]
[Not for publication]
The report by Dr Swift
Dr Swift provided a medical assessment dated 1 March 2016 to the Firearms Registry during the assessment of whether Mr Vargovic’s firearms licence should be revoked. Dr Swift stated that Mr Vargovic was referred to him by Dr E Schuch for treatment of episodic low mood associated with chronic back pain. Dr Schuch also noted that Mr Vargovic was desirous of a favourable psychiatric report in order to have his firearms restored to him. According to Dr Swift, Dr Schuch stated in his referral letter “In view of his ongoing mood, I am loathe to complete letters to have his guns returned to him”. Dr Schuch’s letter is not in evidence before the Tribunal and there is some evidence that this statement was in fact made by Dr Gladman. Dr Schuch works in the same practice as Dr Gladman.
Dr Swift saw Mr Vargovic on two occasions for the purposes of a psychiatric assessment. He also corresponded with Dr Dale.
Dr Swift did not find any mental health grounds for preventing Mr Vargovic from having a firearms licence or regaining his firearms. Dr Swift did not find any signs of depressive illness or any evidence of paranoid ideation or psychosis in Mr Vargovic. Dr Swift also did not elicit any signs of suicidality or specific threats to other persons. He noted that Mr Vargovic had general feelings of being unfairly dealt with regard to the delay in WorkCover authorising his back operation and in regard to the confiscation of his guns and that Mr Vargovic was frustrated and irritated by his situation.
However, Dr Swift noted that Dr Dale and Mr Vargovic’s medical practitioner were opposed to Mr Vargovic regaining his licence. He went on to note Dr Dale’s statement to him that nothing had changed in Mr Vargovic’s circumstances and stated therefore “the potential risks remain”. Dr Swift suggested that Mr Vargovic’s request for the restoration of his licence and firearms be reassessed in 12 months, by which time Mr Vargovic’s circumstances may have changed.
Evidence by Mr Kruger-Davis
Mr Kruger-Davis provided a report in July 2016 during the internal review process at the request of Mr Vargovic. He also gave evidence at the Tribunal hearing. Mr Kruger-Davis stated in the report that he explained to Mr Vargovic the purpose of his intervention was “to support his application to have his firearms returned” by conducting a risk assessment. When questioned at the hearing about this statement, Mr Kruger-Davis said Mr Vargovic had been referred to him by Mr Vargovic’s lawyer.
Mr Kruger-Davis spoke with Mr Vargovic three times by telephone and met with him on one occasion for about an hour. Mr Kruger-Davis had access to Dr Swift’s report, a letter from Dr Gladman dated 14 September 2015 (which is not in evidence before the Tribunal) a letter written by Mr Vargovic to the Firearms Registry dated 2 April 2016 and the decision to revoke the licence made on 24 March 2016 which referred to Dr Dale’s notification.
Mr Kruger-Davis agreed with the assessment of Dr Swift that Mr Vargovic showed no signs of depressive illness or underlying personality disorder. Mr Kruger-Davis stated that Mr Vargovic is depressed due to his chronic pain and his inability to work. He noted Mr Vargovic has never been treated for a mental health condition. He did not consider that there is a risk that Mr Vargovic would not be able to exercise control and responsibility over firearms. He also noted that Mr Vargovic’s pain is now far less than it previously was and he is on less medication.
Mr Kruger-Davis told the Tribunal that he did not consult with Dr Dale or Mr Vargovic’s treating doctors. He said Mr Vargovic asked him not to contact them before he met with Mr Vargovic. He said he would usually contact treating doctors if he was concerned. He did not contact them after he had written his report. He said that when he saw Mr Vargovic he still had a low mood because of his chronic back pain and inability to work, but was not clinically depressed and did not have a mental health condition.
Other evidence from the respondent
Records show that Mr Vargovic was convicted and fined in July 2001 in Victoria on three counts of being unlicensed and in possession of a firearm and for not storing a firearm securely, while unlicensed. In January 2001 a two year Apprehended Violence Order (AVO) was issued against him in Victoria.
Mr Vargovic’s evidence
Mr Vargovic said that he suffered a work injury in 2004 and stopped work altogether in April 2011. At that time he moved back to Albury from Sydney and, since he stopped work, has suffered financially. He has also suffered chronic pain and has lost his enjoyable and independent life as a result of his injury. He said that he had become very frustrated with the way he was treated by his employer and the insurer and the workers compensation system.
Mr Vargovic said that he had asked his doctor, Dr Gladman, to refer him to someone who could help him cope better with the long term injury he had suffered. He said he experienced side effects from the pain medication and was very frustrated with his situation. Dr Gladman referred him to Dr Dale. He admits that he has suffered from low mood and anger. He states that Dr Gladman has never referred him for a psychiatric assessment and he has never been diagnosed with a mental illness. His doctor has never prescribed anti-depressants or anxiety medication.
Mr Vargovic said that he has been shooting since he was a boy and got his first shooters licence in Victoria at age 19. He decided to get a licence and take up shooting again when he became less active. Mr Vargovic said his decision to take up shooting again had nothing to do with his frustration with WorkCover. He bought four rifles and was going to the shooting range two or three times a month. He also goes hunting with a rifle. He denies that his application for a firearms licence had anything to do with his frustration with WorkCover. He states that shooting is an activity he can participate in with his back injury.
Mr Vargovic denies making any threats to harm others during his sessions with Dr Dale. He states that he did ask Mr Kruger-Davis not to talk to Dr Dale and Dr Gladman until after he had formed his own opinion.
Mr Vargovic said that he does not recall his appointment in August 2014 with Dr Dale. When questioned about Dr Dale’s letter to Dr Gladman in which he suggests Mr Vargovic be referred for a psychiatric assessment, Mr Vargovic said that Dr Gladman does not discuss with him what any of his specialists say in their reports. He said Dr Gladman did not refer him for any assessment.
When asked why he had not obtained a further assessment after 12 months in conformity with Dr Swift’s report, Mr Vargovic stated he had not because the current Tribunal process was underway.
Mr Vargovic said that from 2011 to 2015 he was in a lot of pain. He has now had two surgeries and is on less medication. He told the Tribunal that his WorkCover case is now finalised and he will be paid 70% of his wage and medical expenses until retirement age. He states that it is not unusual for a person to express frustration with the workers’ compensation system. Mr Vargovic said that he has never attempted to harm himself and has not harmed others. He understands the seriousness of the report made against him by Dr Dale and also understands his obligations with respect to firearms.
In relation to the firearms offences in 2001, Mr Vargovic stated that when his parents went back to Croatia they left firearms with Mr Vargovic’s sister. Mr Vargovic’s wife reported them to police and Mr Vargovic took responsibility for the firearms. He has had no further problems and was granted a firearms licence in 2014.
In relation to the AVO, Mr Vargovic intimated there was a difficult relationship between himself and his ex-wife and that there was no basis to the AVO.
The legislation
The underlying principles of the Firearms Act 1996 (the 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.
Section 24 of the Firearms Act sets out the circumstances in which a licence may be revoked. Relevantly it provides:
“24 Revocation of licence
…
(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
….
(d) for any other reason prescribed by the regulations.”
For the purposes of s 24(2)(D) of the Firearms Act, clause 19 of the Firearms Regulation 2006 provides:
“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.”
The firearms licence previously granted to Mr Vargovic has been revoked on the grounds that it is not in the public interest for him to continue to hold the licence. What is meant by the term “the public interest” has been discussed in many cases.
In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) ALR 657, it was stated at 681:
“The purpose of the reference to 'public interest' is to ensure that private interests are not the 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.”
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 appellant [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual.”
In Cusumano v Commissioner of Police [2001] NSWADT 50, Deputy President Hennessy stated:
“There is no guidance in the legislation in relation to how these discretions [to revoke firearms licences] should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act.”
Importantly, s 3 of the Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Thus, it is the community’s interests which take precedence over the private interests of an individual. In Ward v Commissioner of Police [2000] NSWADT 28 at [27-28] Deputy President Hennessy said that in terms of public safety:
“27…The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms.
28 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.”
It has also been stated that the public interest requires that all licensees be aware of, and comply with, the legislative requirements: Cook v Commissioner of Police [2003] NSWADT 30. 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 [2005] NSWADT 75 at [25].
Respondent’s submissions
The Commissioner submits that the Tribunal cannot be satisfied that there is virtually no risk to public safety if Mr Vargovic’s firearms licence is not revoked. The Commissioner made detailed submissions as to why it is not in the public interest for Mr Vargovic to hold a firearms licence. The salient points are set out below.
The Commissioner refers particularly to the evidence of Dr Dale and also notes the statement attributed to Dr Schuch in October 2015 that he was “loathe to complete letters” to have the guns returned to Mr Vargovic in view of Mr Vargovic’s “ongoing mood”.
While the Commissioner notes that Dr Swift did not find any mental health grounds for preventing Mr Vargovic from having a firearms licence, the Commissioner referred particularly to Dr Swift’s acknowledgement that Mr Vargovic’s treating doctors were opposed to him retaining his licence. In particular, the Commissioner referred to the statement made by Dr Swift, when noting Dr Dale’s comments about no change in Vargovic’s circumstances, that “the potential risks remain”.
In relation to Mr Kruger-Davis’s report, the Commissioner was very critical of the fact that he did not consult Dr Dale or Dr Gladman after being instructed by Mr Vargovic not to do so.
The Commissioner submits that the observations of Dr Swift and Mr Kruger-Davis that Mr Vargovic showed no signs of depressive illness, paranoid ideation or personality disorder are not remarkable in circumstances where Mr Vargovic consulted Dr Swift on two occasions and Mr Kruger-Davis on three occasions by telephone and once in person. The consultations also occurred in the context of Mr Vargovic wishing to regain his firearms licence.
The Commissioner submits that greater weight should be placed on the opinions of the two medical professionals with the most involvement in and awareness of Mr Vargovic’s health over an enduring period of time. Moreover, greater weight should be placed on Mr Vargovic’s comments made to Dr Dale in circumstances where they were made freely and in a neutral setting, as opposed to his presentation to Dr Swift and Mr Kruger-Davis in the context of seeking a report for the reinstatement of his firearms licence.
The Commissioner submits that the comments and thought processes which gave rise to the s 79 notification by Dr Dale are good indicators of whether it is in the public interest for Mr Vargovic to hold a firearms licence.
The applicant’s submissions
Mr Vargovic points to Dr Dale’s report to the Firearms Registry that the statement made by him “could be interpreted” as an intent to use firearms to cause harm to others. He submits that in circumstances where Dr Dale did not discuss the comments with him, his conclusions are not warranted.
Mr Vargovic submits that Dr Swift and Mr Kruger-Davis were aware of the content of the s 79 report made by Dr Dale and their opinions were based on an assessment of him in answer to the risk assessment questionnaire formulated by the Firearms Registry. He submits that their opinions should be preferred to that of Dr Dale who carried out no such assessment.
Consideration
Mr Vargovic has never been diagnosed with a mental illness. He has never been prescribed medication for anxiety or depression. His treating doctor, Dr Gladman, has never referred him for a psychiatric assessment. Mr Vargovic has, however, been treated for debilitating back pain for many years and sought help from a psychologist to deal with his changed circumstances arising out of his workplace injury and his frustrations with the outcome, or lack thereof, of his workers compensation claim.
Mr Vargovic represented himself very capably before the Tribunal at the hearing and was candid in his evidence about the effects of his injury upon him. He presented his arguments rationally and in detail.
Dr Dale also gave detailed evidence to the Tribunal, much of it in a confidential session. Dr Dale’s primary contact with Mr Vargovic was in 2011. Dr Dale, on the basis of his own evidence, has not had a continuing relationship with Mr Vargovic over the past six years. He saw him in August 2014 and then again in July 2015 but has not seen him since. He has not conducted any formal psychological assessment of Mr Vargovic since September 2011 and at the hearing stated that he could not give an assessment of Mr Vargovic’s current mental state.
There is no doubt that Dr Dale believes that Mr Vargovic poses a risk to public safety and that is why he made the s 79 report. His contemporaneous notes, however, are more understated, as is his subsequent report to Dr Gladman.
[Not for publication]
Mr Vargovic does not have a history of violence or intimidation. He gave an explanation for the previous firearms offences in Victoria and clearly understands his obligations. There is no evidence in relation to the AVO and the respondent has not referred to any record of the AVO being broken or to any violence on the part of Mr Vargovic. I do not consider that the AVO and firearms offences are highly relevant to the current consideration. After all, the firearms licence was granted after these occurrences and they were not relied upon by the Commissioner in submissions.
The Commissioner asks that little weight be given to the reports of Dr Swift and Mr Kruger-Davis and that the opinions of Dr Dale and Dr Schuch (or Dr Gladman) given in 2015 be preferred. However, Dr Gladman, who has been Mr Vargovic’s treating doctor throughout, did not give evidence to the Tribunal and Dr Dale has not seen Mr Vargovic since July 2015. The Tribunal therefore does not have any evidence from either Dr Dale or Dr Gladman as to Mr Vargovic’s current state.
The reports of Dr Swift and Dr Kruger-Davis are more recent and have been prepared for the express purpose of assessing whether Mr Vargovic should have a firearms licence. Both have formed the view that Mr Vargovic should retain his licence. I see no reason not to rely on those reports.
At the hearing the Commissioner made much of the fact that Mr Vargovic had asked Mr Kruger-Davis not to speak to Dr Dale and Dr Gladman until he had arrived at his own opinion. Mr Kruger-Davis acknowledged that he had not spoken to them and stated that he would normally speak to the treating psychologist or doctor if he had any concerns. He did not speak to them after he had seen Mr Vargovic. Mr Kruger-Davis did not resile from his opinion of Mr Vargovic at the hearing.
It is very apparent from the evidence that Mr Vargovic had a difficult time dealing with the pain from his injury, his financial circumstances and refusals by the insurer to permit surgery. He admitted to levels of anger and frustration which affected him. Mr Vargovic’s circumstances have now changed. His workers compensation claim has now been determined in his favour and he has had two lots of surgery for his back. He wishes to pursue his sport of target shooting.
It is accepted that Mr Vargovic made the statements outlined above to his psychologist on two occasions. There is no evidence before the Tribunal that Mr Vargovic ever made direct threats to harm anyone. There is no evidence that he has a mental health condition. There is no evidence he did not keep proper control of his rifles before the licence was revoked and I accept the evidence of Dr Swift that there are no mental health grounds preventing him from having a firearms licence and that of Mr Kruger-Davis that Mr Vargovic is not a risk to public safety.
It follows that the correct and preferable decision is to set aside the decision of the Commissioner to revoke Mr Vargovic’s firearm licence. The effect of that decision is that Mr Vargovic’s Category AB firearms licence is reinstated to 1 May 2019 (the term of the original grant).
Order
(1)The decision to revoke the applicant’s Category AB Firearms Licence is set aside.
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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
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