Vella v Commissioner of Police

[2003] NSWADT 91

CITATION:	Vella v Commissioner of Police, NSW Police Service [2003] NSWADT 91
DIVISION:	General Division
PARTIES:	APPLICANT Angelo Vella RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	023301
HEARING DATES:	19/03/2003
SUBMISSIONS CLOSED:	03/19/2003
DATE OF DECISION:	05/01/2003
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	Firearms Act - firearms licence - issue of licence or permit - Firearms licence - issue of licence or permit
MATTER FOR DECISION:	Principal Matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Crimes (Sentencing Procedure) Act 1999 Firearms (General) Regulation 1997 Firearms Act 1996
CASES CITED:	Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77 McDonald v Director General of Social Security (1984) 1 FCR 354 at 357 Tolefoa v COP (2000) NSWADT 9 Phegan v Commissioner of Police, New South Wales Police Service (2002) NSWADT 127 Fielden & Fielden v Commissioner of Police (2000) NSWADT 156 Cleofe v Commissioner of Police (2001) NSWADT 2 Cusumano v Commissioner of Police (2001) NSWADT 50 Kudrynski v Commissioner of Police (2001) NSWADT 101 Polyzogopoulos v Commissioner of Police (2001) NSW ADT 166 Turner v Commissioner of Police (2001) NSWADT 169 Federici v Commissioner of Police (2001) NSWADT 183 Peardon v Commissioner of Police (2001) NSWADT 188
REPRESENTATION:	APPLICANT In person RESPONDENT J Overall, Barrister
ORDERS:	Orders made on 19 March 2003; The Commissioner's decision to refuse Mr. Vella's Category AB firearms licence application is affirmed.

The Application
1 These proceedings relate to a decision by the Commissioner of Police, New South Wales Police Service (“the Commissioner”) to refuse an application for a category AB firearms licence by Mr. Angelo Vella. The reasons for the refusal were that Mr Vella is not a fit and proper person to hold a licence and that it is not in the public interest for him to do so. The Commissioner relied on the fact that in March 2001 Mr Vella was found guilty of firearms offences, with no conviction recorded.

2 Mr. Vella previously applied for a firearms licence on 27 March 2001. That application was refused and the refusal was upheld after internal review. A new application licence was received on 8 July 2002 and was subsequently refused on 13 September 2002. Mr Vella requested a review of that decision. The internal review was finalised on 21 November 2002 and the decision was taken that the original decision to refuse Mr Vella's application was to stand. Mr Vella applied to the Tribunal for review of that decision.

3 The application came before me for hearing on 19 March 2003. Following the hearing I affirmed the Commissioner's decision and gave brief reasons for my decision. Mr Vella has sought written reasons for the decision and more detailed reasons are now provided.

Background
4 Mr Vella's previous application was refused because he had been charged with offences of “Possess/own firearm whilst unlicensed” and “Not ensure safekeeping of firearms”. On 22 March 2001 the Penrith Local Court found the matters proved but no convictions were recorded, under Section 10 of the Crimes (Sentencing Procedures) Act 1999. Mr Vella was placed on twelve-month good behaviour bonds in relation to each matter.

5 Mr Vella's possession of unregistered and unsecured firearms was discovered due to a break-in at his home and the subsequent kidnapping of his daughters on 4 January 2001. Two rifles owned by Mr Vella were hidden behind a chest of drawers in an unlocked cupboard. Ammunition for the rifles was hidden in the same unlocked cupboard.

6 On the afternoon of 4 January 2001 Mr Vella's daughter arrived home and found the premises had been broken into and ransacked. She went to the kitchen and was confronted by the offender, armed with Mr Vella's rifle. Her wrists were tied and she was then secured to a bedpost. Mr Vella's other daughter returned home approximately 15 minutes later and was also confronted by the offender, armed with the rifle. After an ordeal lasting approximately six hours, Mr Vella's daughters escaped and the offender was apprehended. The details of the incident are set out in the police incident report, which is included in the Commissioner's brief filed in relation to this application.

7 At the time of the 4 January 2001 incident Mr. Vella informed the Police that he had had two firearms in his possession for approximately 39 years, that those firearms had never been registered and that he did not own an approved storage facility for the firearms. Mr Vella also stated that he had been licensed approximately 18 years previously but that he had let the licence lapse.

8 Mr Vella has subsequently upgraded the security system on his home by installing a 'back to base' monitoring alarm system and he has obtained a second guard dog. He has also install a firearms safe that he states complies with the legislative storage requirements.

9 Mr Vella also gave evidence that he has joined the Sporting Shooters’ Association of Australia and that he has completed a firearms safety awareness course. The certificate that Mr Vella obtained following completion of the course is dated 26 February 2001 and states that he has “completed firearms safety training as required in accordance with the Firearms (General) Regulation 1997”. These issues are not in dispute.

Reviewable decision
10 The reviewable decision is that of the Commissioner to refuse Mr. Vella’s firearms licence. On 19 December 2002 Mr. Vella applied to this Tribunal for review of the Commissioner's decision. The matter was listed before the Tribunal’s Deputy President on 21 January 2003 at which time she made directions for the filing of documents and the matter was listed for hearing on 19 March 2003. The matter proceeded on that day.

Nature of proceedings
11 The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all the material first considered, together with any further relevant material, so as to either confirm the original decision, vary it, or set it aside and substitute another. “The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view was objectively the right one to be made” (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77).

12 These are not adversarial proceedings in which Mr. Vella carries an onus of proof. Mr. Vella, by making the application, triggers a process of merits review by the Tribunal. Mr. Vella does not take on the responsibility of having to prove a case, nor does he cause the Commissioner to have to prove a case. Mr. Vella and the Commissioner are before the Tribunal as parties by virtue of section 67(2) of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”).

13 Section 63(1) of the ADT Act provides that in determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. It makes its own decision in place of the Commissioner's, and “there is no presumption that the decision of the [Commissioner] is correct” (McDonald v Director General of Social Security (1984) 1 FCR 354 at 357).

14 When there is a fact in issue as to the existence of which the Tribunal must be satisfied, it must be satisfied to the civil standard of proof, that is, on the balance of probabilities (McDonald at 357).

Applicable Legislation
15 The relevant provisions of the Firearms Act 1996 (“the Act”) are found in section 11 and 39 of the Act. Clause 5 of the Firearms (General) Regulation 1997 is also applicable. As so far as they are relevant to these proceedings those sections and clause provide:

“11 General restrictions on issue of licences
(1) The Commissioner may issue a licence in respect of an application, or refuse any such application.
(2) A licence must not be issued until after the end of the period of 28 days following the day on which the application is made.
(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
(b) in the case of a person who has never held a licence (including a firearms licence under a previous Act), the applicant has completed, to the satisfaction of the Commissioner, such firearms training and safety courses as are prescribed by the regulations in respect of the licence concerned, and
(c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and
(3A) Despite subsection (3) (b), the Commissioner may require an applicant for a licence to complete such firearms training and safety courses as are approved by the Commissioner in relation to the category of licence concerned.
(4) 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:
(a) the applicant's way of living or domestic circumstances, or
(5) A licence must not be issued to a person who:
(b) has, within the period of 10 years before the application for the licence 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
(7) The Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.
(8) The regulations may provide other mandatory or discretionary grounds for refusing the issue of a licence.”
16 Sections 39 in Part 4 of the Act relate to the safe keeping of firearms. That section provides:
“Part 4 Safe keeping of firearms
39 General requirement
(1) A person who possesses a firearm must take all reasonable precautions to ensure:
(a) its safe keeping, and
(b) that it is not stolen or lost, and
(c) that it does not come into the possession of a person who is not authorised to possess the firearm.
Maximum penalty: 50 penalty units or imprisonment for 2 years, or both, if it is established beyond reasonable doubt that the firearm concerned was a prohibited firearm or a pistol, or 20 penalty units or imprisonment for 12 months, or both, in any other case.
(2) The regulations may specify the precautions that are taken to be reasonable precautions for the purposes of this section.
17 Clause 5 of the Firearms (General) Regulation 1997 provides
“5 Offences that disqualify applicants
For the purposes of sections 11 (5) (b) and 29 (3) (b) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales:
(a) Offences relating to firearms or weapons
An offence relating to the possession or use of a firearm, or any other weapon, committed under:
(i) the law of any Australian jurisdiction, or
(ii) the law of any overseas jurisdiction (being an offence that, had it been committed in Australia, would be an offence under the law of an Australian jurisdiction).”
Mr. Vella's case
18 Mr. Vella presented evidence on his own behalf. While he agrees with the Commissioner’s chronology of events, Mr. Vella argues that his actions since the incidents that form the basis of the Commissioner’s decision have addressed the Commissioner’s concerns. He asserts that he is no threat to the public and therefore there is no reason why he should not have his licence application granted.

19 The essence of Mr. Vella’s case is set out in his written submissions. Those submissions state:

“In relation to the request made by the Administrative Decisions Tribunal on Tuesday 21st January 2003, please find following my submission detailing the unfair manner by which I believe I have been treated by the Firearms Registry in re-applying for my firearms licence.

On the 6th January 2001, I went to St Mary's Police Station with my daughter Kathleen to make her statement to the police relating to the matter that she was involved in on 4th January 2001. During this appointment, Sergeant Garry Salafia accompanied me to my home where he took possession of the ammunition that I had at home. It was at this stage that Sergeant Salafia informed me that I would be charged with a firearms offence. Approximately two (2) months latter he contacted me at home to inform me that I would receive a summons "2 weeks before my court case".

On the 22nd of March 2001, I appeared before Penrith Local Court on a gun related offence. The matter was proven, however, the Magistrate Mr Lucas placed me on a good behaviour bond under Section 10. No conviction was recorded and the gun returned to me on the provision that they be held by a licensed gun holder. A letter was issued by Penrith Court stating these requirements.

On the afternoon of the court hearing, I entered St Mary's Police Station with my nephew and presented the police with the letter from the Court stating that I was to be returned the 303.25 gun. My nephew being a licensed firearm holder was to store the gun. It seemed unusual that after several months St Mary's police rang and requested that I return the 303.25 gun. I have done nothing but co-operate with all of their requests.

I initially applied for my gun licence on 27th March 2001 in order to abide by the terms and conditions set out within the Bond.

Mr Steve Waters of the Firearms Registry contacted me on my mobile phone and informed me that he was not in a position to allow my licence to be processed due to the issuing of the Section 10 Bond for a period of twelve (12) months.

Further to the telephone call received from Mr Waters, I received a letter mailed directly to my home address from the Firearms Registry stating that my application had been revoked as a result of the Good Behaviour Bond issued under Section 10.

At the time of application, I was informed by Constable Smith of St Mary's Police Station, that this letter would be forwarded directly to St Mary's Police Station.

After receiving this correspondence, I spoke to Constable Kerry Smith several times (meeting her twice (2) - once at Regentville Police Station and the other at St Mary's Police Station). After the Court Case relating to the kidnapping of my daughters was completed in October 2001, Constable Smith requested my attendance at St Mary's Police Station. From here we attended the St Mary's Shooters Association, where the 30.30 gun used in the offence that I was charged with, was registered. My membership to the Shooters Association of Australia was accepted on 24th May 2001.

After the expiration of the twelve (12) month period, I re-applied for my gun licence believing that I had complied with the terms of my bond by installing a firearms safe and registering the firearm.

I contacted the Firearms Registry after a few months as I had not received any correspondence from them as to ascertain the progress of my application. Upon calling, the lady that answered my call checked the content of my file and informed me that the matter was "very very messy" and the only person that I was able to speak to me in regards to my application was Steve Waters. A question that I have of the Firearms Registry is, why is my file marked "very very messy" and what does this mean in relation to my application?

In refusing my second licence application, Mr Richmond, Manager of the Firearms Registry, stated that after purchasing a gun safe, that I would continue to not use the gun safe. How can these statements be justified by a person who does not know me. I, before this occasion, have always been a law abiding citizen! His statements are difficult to comprehend considering the criminal involved in the matter dealing with my daughters will be out on parole in a few months time after a sentence of two and haft years (21/2)? Does the law regard this criminal to be "safe" and within the public’s safety after serving this minimal sentence of 2 1/2 years when the maximum penalty for kidnapping is 25 years? What is the definition of a person being "a danger to public safety?" and a "proper person"?

From the above submission, I believe that my application for a gun licence has been dealt with in an unfair and unjust manner. I believe that the Firearms Registry has been negligent in the process required in reviewing my application. The Registry has made no attempt to contact me throughout the review process to determine what steps or action I had taken to ensure the safe keeping of my firearm since my initial application.

I believe that I have fulfilled the terms and conditions set down by the Local Court within the Section 10 bond and should be granted my firearms licence.”

20 Mr. Vella said that he has acquired the proper storage facilities for his firearms and through the ordeal of 4 January 2001, the events relating to his court appearance and licence applications he has learned a great deal about the applicable law. He has followed the advice given to him by the police and updated his security arrangements, purchased a gun safe and undertook a firearms safety course. He has also joined the Sporting Shooters’ Association of Australia. He submitted that by these actions he has demonstrated that he is a fit and proper person to hold a licence and that there is no basis for asserting that it is not in the public interest for him to do so.

The Commissioner's case
21 The Police Service’s file was put in evidence and the Commissioner relied on the documents contained within that file. The Commissioner’s case is essentially that outlined in the reasons provided following the internal review. With the exception of the particular circumstances of the case, there is no general suggestion that Mr. Vella is not a person of good character. However, the Commissioner considers that there is a public interest issue to be considered and that the interest of public safety must outweigh any personal interests that Mr. Vella might have in possessing his firearms.

22 The Commissioner has concerns about Mr. Vella being issued with a firearms licence due to his past conduct. This conduct comprises:

(i) Failing to hold a licence for firearms for a period of 18 years despite the numerous opportunities that occurred in that time during various amnesties;
(ii) Failing to store the firearms safely in accordance with statutory requirements; and
(iii) Failing to store ammunition separately from the firearms in accordance with statutory requirements
23 The Commissioner argued that had the finding of guilt of Mr Vella led to a conviction for the firearms offences he would have been precluded from obtaining a firearms licence for ten years.

24 The failure by Mr. Vella to store the firearms and ammunition safely allowed an offender to use them illegally and with great danger to the public safety. In these circumstances there is a legitimate concern in relation to public safety.

25 In so far as they are relevant to these proceedings, the reasons given following the internal review and upon which the Commissioner relies provided:

“D. REASONING PROCESS:

The Firearms Act 1996 ('Act') sets up a scheme for licensing people to possess and use firearms. There are several provisions which allow the Commissioner to refuse a licence. I have formed the view that the legislative provisions listed above are relevant to your particular case. Further, I have noted the abovementioned issues raised by you in support of your application.

After fully and independently considering all relevant matters I make the following fresh determination.

In 1996, the government enacted "tough new gun laws". One of the underlying principles of that law 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 firearms2.

Given these principals, I am of the opinion that the main ground on which your firearms licence application should be refused is that it would be contrary to the public interest for you to be licensed to possess firearms.

Facts of the offence
Your possession of unregistered and unsecured firearms was discovered due to a break-in at your home on 4 January 2001.

Your daughter arrived home and found the premises had been broken into and ransacked. She went to the kitchen and was confronted by the offender, armed with your rifle. Her wrists were tied and she was then secured to a bedpost. Your other daughter returned home approximately 15 minutes later and was also confronted by the offender, armed with your rifle. After an ordeal lasting approximately six hours, your daughters escaped and the offender was apprehended.

You stated to police at that time, that the two firearms had been in your possession for approximately 39 years, had never been registered and that you did not own an approved storage facility for the firearms. You also stated that you had been licensed approximately 18 years previously but had let the licence lapse.

Public Interest
In considering your request for a firearms licence, I have noted your lack of previous criminal history and that the presiding Magistrate saw fit not to record a conviction for the firearms offences. While your character is not in question, you have been found guilty of fundamental breaches of the Act in that you have not stored your firearms safely or obtained a licence authorising you to possess them.

The issue of public interest is operated in the absence of character defects with respect to exercising discretion adversely to an individual. I refer to Tolefoa v COP (2000) NSWADT 9, which provides.'

"(Public interest) is an inherently broad concept giving the appellant the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the parliament intended the public interest discretion to operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant objection."
During the 39 years in which you state you had been in possession of the firearms, there has been considerable media attention regarding changes to the laws surrounding firearm ownership and use. During this period there have been several amnesties. From 12 July 1996 there was a well publicised amnesty and buy-back scheme, which ran for a period of approximately twelve months. This amnesty was put in place to enable gun owners to become licensed and to have their firearms registered. A large advertising campaign was mounted to ensure the general public were aware of the requirements. You have provided no extenuating circumstances or any reason why the firearms were not registered or why you had not become licensed to possess them. It can only be assumed that you had chosen to blatantly ignore these fundamental requirements of the law.

The "tough new gun laws'' had been in force for a considerable period of time when the incident, which led to you being found guilty of firearms offences, occurred. Again, I can only assume that you also chose to ignore the safe keeping requirements stipulated in the Act. As such, I am of the opinion that should this incident not have occurred, your firearms would still have been stored in this unsafe manner. Over a lengthy period of time you have shown complete disregard for the safety provisions of the Act and for the law in general. In fact, your negligence was only discovered due to a criminal breaking in to your home. As such, I hold concerns that should you be issued with a firearms licence you may not always choose,' to diligently uphold the conditions of that licence.

I have given considerable weight to the fact that you have now installed an approved safe for the purpose of keeping your firearms. However, your recent advice that the firearms were previously stored 'discreetly' within your bedroom wardrobe does not give me any confidence that you are now aware of the necessity to ensure public safety by diligently adhering to safe keeping requirements. The firearms were previously stored behind a chest of drawers in an unlocked cupboard in your bedroom. The ammunition was stored in the same cupboard. The firearms may have been stored discreetly out of sight but they were certainly not stored in a way to ensure their safe keeping. In fact, a dangerous criminal had little difficulty in accessing them and using them to threaten and kidnap your daughters.

I have formed the view that I am not satisfied that a similar lapse may not reoccur in the future. In arriving at this conclusion I have taken into account that you had apparently stored your firearms in this manner for a prolonged period prior to the break-in and had remained unlicensed for approximately 18 years.

You state that 'the firearms hold great sentimental value as they have been in the family for generations'. Despite the magistrates finding that the firearms be retained by a firearms licence holder, Section 80(2) of the Firearms Act 1996 states that if a person is found guilty of an offence under Part 4 (safekeeping) and a firearm has been seized by a police officer in connection with the offence, the court which makes the finding of guilt is taken to have ordered that the firearm be forfeited to the Crown. A firearm so forfeited may be destroyed. Had you become licensed and had the firearms registered during any of the recent amnesties you would have had no trouble retaining the firearms in the family.

As quoted in the Firearm Bill Second Reading speech the underlying principles and aims of the Firearms Act 1996 are to confirm firearm possession and use is a privilege conditional on the over riding need to ensure public safety by imposing strict controls on same.

Where there has been, or is, a possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm.

In addition, in the Second Reading speech on 25 June 1996 relating to the Act the Hon Mr J W Shaw (Attorney General) said, (at 3557):

"The legislation puts the public's right to safety before the privilege of gun ownership."
I have weighed your previously good record and your desire to retain the firearms, against the 'public safety' scope of the Act. Public safety is promoted by safe storage and registration requirements. Your actions have allowed your firearms to come into the possession of a criminal and the incident, which threatened your daughters, in addition to the wider public's safety, could have had tragic consequences. Therefore I do not consider it is in the public interest for you to be issued with a firearms licence for recreational purposes.”
26 Mr. Overall for the Commissioner argued that the legislative requirements are strict and the obligation is on the individual firearm owner to comply with those requirements. Mr. Vella failed to hold a licence for the firearms and the firearms were not secured. These are clear breaches of the legislative requirements. The intruder’s actions on 4 January 2001 have demonstrated the risk associated with that lack of security.

27 Mr. Overall argued that by his conduct Mr Vella did not take all reasonable precautions to ensure that his firearms did not come into the possession of a person who was not authorised to possess the firearms. He had them and the ammunition stored in a cupboard in his bedroom. The intruder easily found them and used them. Mr Vella's conduct is relevant and serious. Mr Vella failed to store the firearms in accordance with the requirements of the Act. Consequently Mr V Vella did not meet his storage obligations.

28 The Commissioner has substantial concerns as to whether Mr. Vella, if granted a licence, would now comply with the legislative requirements as he has failed to do so for the past 18 years.

29 Although Mr. Vella was found guilty he was not convicted of any offences. Even so, by his own admissions, he has engaged in conduct that could amount to a breach of two provisions of the Act. A conviction for these offences would have meant that Mr. Vella would have been refused a licence on mandatory grounds for 10 years: In the absence of such convictions, his conduct is still relevant to his fitness to hold a firearms licence and to the question of whether it is contrary to the public interest for him to do so.

30 One of the principles of the Act is "to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety. Mr. Vella's conduct resulted in a serious challenge to public safety when the intruder entered his home and used the unsafely stored and loaded firearm to kidnap Mr. Vella's daughters.

31 Mr. Overall referred to the decision of Phegan -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 127 in which this Tribunal’s Deputy President had reviewed several decisions in which the Tribunal affirmed the Commissioner's decision. Those decisions are summarised as follows:

“Fielden & Fielden v Commissioner of Police [2000]NSWADT 156, where the police found four guns wrapped in a blanket under Mrs Fielden's bed;

Cleofe v Commissioner of Police [2001] NSWADT 2 where a security guard left a firearm in an unlocked drawer;

Cusumano v Commissioner of Police [2001] NSWADT 50 where police found several firearms stored in the top of a bedroom wardrobe;

Kudrynski v Commissioner of Police [2001 ] NSWADT 101 where Mr Kudrynski had a shotgun and ammunition stored in a sleeping bag in a car en route to Melbourne;

Polyzogopoulos v Commissioner of Police [2001] NSWADT 166 where the police found a firearm in a leather cover in a wardrobe;

Turner v Commissioner of Police [2001] NSWADT 169 where firearms were found inside a built-in wardrobe;

Federici v Commissioner of Police 2001 NSWADT 183 where the locked steel box containing three rifles and a shotgun was not attached to any permanent fixture; and

Peardon v Commissioner of Police [2001] NSWADT 188 where police found two rifles in a wardrobe and another rifle and shot gun disassembled and wrapped in bed sheets.”

32 Mr. Overall submitted that Phegan is authority for the principle that for a revocation or refusal decision based on failure to store firearms safely, to be set aside, an applicant must show that there are persuasive and relevant considerations, which take their matter outside the ordinary case.

33 He submitted that in this matter Mr. Vella has been unable to show "persuasive and relevant considerations which take the matter outside the ordinary case." There are no extenuating circumstances in this case which would justify the Tribunal setting aside the Commissioner's decision to refuse Mr. Vella a licence.

Findings
34 In this application, I have considered all of the evidence and the oral argument presented before the Tribunal. In particular I have had regard to the following issues:

That Mr. Vella’s previous application was refused because at that time, he was subject to two good behaviour Bonds imposed by Penrith Local Court and that Mr. Vella has satisfied the terms of those Bonds;

That the Bonds were issued as a direct result of an incident involving the break in of Mr. Vella’s home and subsequent kidnapping of Mr. Vella’s daughters on 4 January 2001;

That Mr. Vella’s firearms were returned to him on the basis that they be stored safely with an appropriately licensed person;

That Mr. Vella had no previous criminal offence or charges prior to the incident;

That Mr. Vella has installed a 'back to base' monitoring alarm system and has also installed an approved firearms safe;

That Mr. Vella has completed a firearms safety awareness certificate course;

That Mr. Vella now wishes to hold a firearms licence to enable the firearms, which have been in his family for generations, to be stored at his property;

That Mr. Vella has expressed remorse for his failure to obtain a licence and his failure to ensure that the firearms were stored in accordance with the legislative requirements; and

That Mr. Vella has learned a great deal from his experiences relating to the events of 4 January 2001 and his prosecution for firearms offences.

35 The principal issue that I have to decide is whether there is a risk to the safety of the public if Mr. Vella is granted a licence. Mr Vella has breached certain provisions of the Act in relation to storage and possession of unregistered firearms even though he was not convicted of those offences. Part 4 of the Act provides for the safekeeping of firearms. The general requirements are set out in s 39 which relevantly provides that a person who possesses a firearm must take all reasonable precautions to ensure (a) its safe keeping, and (b) that it is not stolen or lost, and (c) that it does not come into the possession of a person who is not authorised to possess the firearm.

36 In Phegan -v- Commissioner of Police, New South Wales Police Service the Deputy President of this Tribunal undertook a review of the various Tribunal decisions reviewing decisions of the Commissioner to revoke or not issue a firearms licence when the licensee or applicant has breached storage requirements. I agree with the Commissioner’s submission that the decision in Phegan provides an accurate statement of the law. The Deputy President stated at paragraphs 19 and 20 of her decision:

“19 These decisions make it clear that for the Tribunal to set aside a revocation decision based on failure to store firearms safely an applicant must show that there are persuasive and relevant considerations which take their matter outside the ordinary case.

20 Mr Phegan failed to store firearms and ammunition safely in a situation where one of his children accessed, loaded and fired one of those firearms. The improvement of public safety by promoting the safe and responsible storage of firearms is identified as one of the underlying principles of the Act. There are no extenuating circumstances in this case which would justify the Tribunal setting aside the Commissioner's decision to revoke Mr Phegan's licence.”

37 In my view, given the sentimental value that he attaches to his firearms, Mr. Vella could reasonably have been expected to be extra cautious about their storage. In the circumstances of this matter, an intruder entered Mr. Vella’s house and gained access to both in unregistered firearms and ammunition. The underlying principle outlined in Phegan's case remains and applies equally to a decision to not issue a firearms licence as to a decision to revoke a licence. Before a licence is issued, the Commissioner must conclude that there is virtually no risk to the public associated with the issue of the licence. The likelihood of risk must be assessed by reference to the Applicant’s prior conduct. Where, as in Mr. Vella’s case, there is a history of failure to comply with the legislative requirements regarding storage of firearms, an applicant must show that there are persuasive and relevant considerations which take their matter outside the ordinary case.

38 I agree with the Commissioner’s statements regarding the media campaign that surrounded the gun amnesties. I have difficulty in accepting that Mr. Vella could not have reasonably been expected to be aware of his obligations in regard to the registration of the firearms. Indeed, he has conceded as much. The issue that remains is therefore whether the actions that Mr. Vella has taken since January 2001 establish persuasive and relevant considerations which take this matter outside the ordinary case.

39 I note that Mr Vella indicated that he had good intentions in regard to the registration of the firearms and that he has purchased an appropriate storage cabinet. I also note the extra security precautions that he has taken in relation to his property. In my view these are significant steps on Mr Vella's part.

40 The issue of firearms safety training was discussed at the hearing and I note that Mr. Vella has undertake a course in safety awareness. I am concerned however at the lack of depth in the approved course. Mr Vella stated that the course was comparable to that of a drivers licence test. He obtained a manual which he studied over a two-week period and then completed a short examination. In response to a question that I put to Mr Vella, he conceded that he did not really learn anything from the course that he did not already know. Given that Mr Vella completed this course shortly after the events of January 2001, this concession does not give me confidence that he now has the requisite degree of knowledge that could be expected of somebody who seeks to obtain a firearms licence.

41 The public interest requires that all licensees be aware of and comply with the legislative requirements. On the evidence before me I am not satisfied that Mr Vella has sufficient knowledge of the legislative requirements in regard to the possession, storage and safety of firearms to allow that public to be comfortable with his holding a licence. I have no other concerns about his suitability.

42 It is possible that if Mr. Vella were to successfully complete a more substantial firearms safety awareness course and if Mr. Vella were to reapply for a firearms licence, the Commissioner may well reach a different conclusion.

43 It follows in my view that the correct and preferable decision is to refuse Mr. Vella’s firearms licence application. Accordingly I affirm the Commissioner's decision.

Orders
44 The Commissioner’s decision to refuse Mr. Vella’s Category AB firearms licence application is affirmed.