Watkins v Commissioner of Police, NSW Police
[2006] NSWADT 276
•22/09/2006
CITATION: Watkins v Commissioner of Police, NSW Police [2006] NSWADT 276 DIVISION: General Division PARTIES: APPLICANT
Ewan Gwyn Watkins
RESPONDENT
Commissioner of Police, NSW PoliceFILE NUMBER: 063124 HEARING DATES: 08/06/06 SUBMISSIONS CLOSED: 06/08/2006
DATE OF DECISION:
09/22/2006BEFORE: Fitzgerald K - Judicial Member CATCHWORDS: Firearms Act - firearms licence - revocation of licence or permit - Firearms licence - revocation 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
Firearms Regulation 2006CASES CITED: Aubrey v Commissioner of Police, New South Wales Police [2005] ADT 266
Bevan v The Commissioner of Police, New South Wales Police [2004] NSWADT 1
Botros v Commissioner of Police, New South Wales Police Service [2000] NSWADT 6
Bottomley v Commissioner of Police, New South Wales Police [2005] NSWADT 211
Cleofe v The Commissioner of Police, New South Wales Police [2005] NSWADT 2
Comalco Aluminium (Bell Bay) Ltd v O’Connor & Ors (1995) 131 ALR 657
Commissioner of Police, New South Wales Police Service v Toleafoa [1999] NSWADTAP 9
Cook v The Commissioner of Police [2003] NSWADT 30 Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Haynes v Commissioner of Police, New South Wales Police Service [2001] NSWADT 52
Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218
Lynch v Commissioner of Police, New South Wales Police (GD) [2006] NSWADTAP 43
Lynch v Commissioner of Police, New South Wales Police [2006] NSWADT 80
McDonald v Director General of Social Security (1984) 1 FCR 354
Moody v Commissioner of Police, New South Wales Police [2002] NSWADT 146
Morris v The Commissioner of Police [2002] NSWADT 223 Muller v Lalic [2000] NSWCA 50
Phegan -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 127
R v Cromerty [2004] NSWCCA 54
R v Thurgar (1999) 51 A Crim R 109
R v Tolley [2004] NSWCCA 165
Rosenboom v Commissioner of Police, New South Wales Police Service [2006] NSWADT 10
Uzelac v Commissioner of Police, Ministry of Police [2003] NSWADT 226
Vella -v- Commissioner of Police, NSW Police Service [2003] NSWADT 91
Walker v The Commissioner of Police [2002] NSWADT 225
Ward v Commissioner of Police, New South Wales Police [2000] NSWADT 28
Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75
Yaghi v Commissioner of Police, New South Wales Police [2001] NSWADT 91REPRESENTATION: APPLICANT
RESPONDENT
A Conwell, solicitor
A Venditti, agentORDERS: The decision of the Commissioner of Police, New South Wales Police Service to revoke Mr Watkins’s Category AB Firearm licence no 407851178 be affirmed.
REASONS FOR DECISION
Background
1 On 8 December 2005 the Firearms Registry notified Mr Watkins that his category AB firearm licence number 407815578 had been revoked. This decision was affirmed on 13 March 2006 following internal review and on 23 March 2006 an application was lodged with this Tribunal.
2 Mr Watkins held a Category AB firearms licence from 2 August 1999 to 24 September 2004 without issue. He subsequently applied for a Category AB firearms licence on 10 October 2004 which was issued on 3 February 2005 and was due to expire on 4 February 2010.
3 Mr Watkins relied on his affidavit of 15 May 2006 and also gave oral evidence on his own behalf. The affidavit included references from Mr Michael Colgan, Senior Account Manager at CMP Consulting Pty Limited and Doctor Caprice L Webb, Chiropractor, as well as a letter from Colin Peachey, Sporting Shooters Association, Tumut Branch. The Police Brief, including Criminal History – Bail Report, as well as the related Facts Sheet were in evidence for the Commissioner. Short oral evidence for the Commissioner was also given by Senior Constable William Charles Barnes attached to the Queanbeyan Crime Scene Section and Detective Leading Senior Constable Darren Keith Waugh.
4 Aside from one incident on 10 July 2005, which is outlined below, the core facts underlining this application are not in dispute. On 12 September 2005, in Tumut Local Court, Mr Watkins was convicted and fined $500 for the charge of “Not keeping firearms safely – not prohibited firearm/pistol” which included an order for the destruction of his firearm. Mr Watkins lodged a severity appeal as a result of which on 14 November 2005 at Wagga Wagga District Court it was found proven that he had failed to keep a firearm safely – not prohibited firearm/pistol but no conviction was recorded under Section 10 of the Crimes (Sentencing Procedures) Act 1999.
5 On 11 July 2005 police attended Mr Watkins’s house for a safe storage audit. At that time his three guns were not stored safely, in breach of the legislative requirements. His BRNO .22 magnum rifle was found under his bed, his Interarms .22-250 calibre rifle was found in his unlocked firearms safe and his SGS Brand 12 gauge double barrel shot gun was in possession of a friend who was not authorised for the use or possession of firearms.
6 Mr Watkins operates the Triton Trout Farm on Goobragandar Road, Goobragandar. He is married with a wife and small child. On 11 July 2005 his wife and child were in the house. The Police Facts Sheet supports the evidence of Senior Constable Waugh and Mr Watkins that on that day Mr Watkins immediately took the police to his guns. He did not dispute that he had committed the offences. He has accepted that his conduct was wrong and has expressed remorse both formally as part of the Internal Review and again before the Tribunal.
7 Mr Watkins acknowledged that on 11 July 2005 each of his weapons was not stored in accordance with legislative requirements but gave a reason for each breach. Mr Watkins said in relation to the first that the BRNO. 22 magnum rifle was removed from his gun safe and placed under his bed as he was intending to use it within the next hour from when the police arrived. He also stated that the magazine was removed and on the top shelf of his dresser. It was Mr Watkins’s evidence that the second gun, the Interarms .22-250, was in the gun safe but it was unlocked because the first gun had been removed from it. It was his evidence that the third gun, the SGS Brand 12 gauge double barrel shot gun, was at the house of a friend, Mr Shippey, where he had been assisting to control vermin on his property.
8 Mr Watkins’s evidence was that he had helped Mr Shippey on 10 July 2005 and had stayed the night at Mr Shippey’s house. Although Mr Shippey was not authorised to handle guns he had a gun safe which complied with the Firearms Act 1996 (NSW) (as it was installed by the previous owner) and the gun was placed in that safe for the night. Mr Watkins went into town the next morning, 11 July 2005, and left the gun in Mr Shippey’s gun safe rather than taking it with him as he felt that was the safest option. Mr Watkins gave evidence that he intended to go and pick up the gun later in the day but he was unable to as the police had arrived at his property. Mr Watkins stated that at no time during that day did Mr Shippey use or touch the gun. He also gave evidence that Mr Shippey did not have access to the magazine or ammunition of the gun.
9 The references provided for Mr Watkins were good. They spoke of his devotion to family and community and explained the importance of firearms use for his property. Both references described the offence as a lapse in judgement as well as a belief that he will not make any further mistakes.
10 Mr Watkins also provided evidence as to his involvement in the local community, the fact that he had never been charged with any offences before this time and that he has had a clean record of responsible gun ownership since obtaining his licence in 1999. He drew the Tribunal’s attention to a previous inspection of his gun safety by Tumut Police where it had been found that his firearms were stored properly. Mr Watkins also provided two character references which spoke of his experience with firearms. Subsequent to having his licence revoked he has also enrolled in a firearms safety awareness course with the Tumut Sporting Shooters Association of Australia and has been counselled by the president of the Tumut Sporting Shooters Association of Australia on the safe handling and storage of firearms. That president, Mr Colin Peachey provided a letter noting that he was satisfied that Mr Watkins comprehends the safety and legal demands required by the Sporting Shooters Association and the Police.
11 Finally, Mr Watkins provided evidence that firearms are an essential tool for the day to day running of his farm for a variety of reasons including dealing with vermin. He outlined, and I accept, that failure to deal with vermin is more than an inconvenience as employing a professional shooter for this task is extremely expensive and inefficient so that the absence of a firearms licence places his livelihood as a farmer at risk. Since his licence was revoked Mr Watkins has had the assistance of the National Parks and Wildlife Service who have been doing some trapping near his property as well as from other people in town. No evidence was provided as to the extent of the assistance that Mr Watkins had received, or could expect to receive in the future, nor of the specific financial or other impact that not having a firearms licence would have on the viability of his farm. The Commissioner did not provide any evidence contrary to that above.
10 July 2005
12 The one matter about which the parties differed was an incident on 10 July 2005 when Detective Senior Constable William Barnes came onto Mr Watkins’s property. Both Detective Senior Constable Barnes and Mr Watkins agree that Detective Senior Constable Barnes at no time identified himself as a police officer. However, Detective Senior Constable Barnes claims that Mr Watkins threatened him, a claim Mr Watkins rejects. Mr Barnes was travelling with his family and stopped to look at a peacock on Mr Watkins property.
13 Mr Watkins’s evidence is that he walked towards Mr Barnes (with the gun facing downwards at all times) and, after Mr Watkins’s mother informed him that Senior Constable Barnes wanted to take a photo of a peacock on his property, he agreed but the peacock wandered away and Senior Constable Barnes went back to the car that was parked on the main road outside the property. Mr Watkins’s evidence is that he did not know that anyone else was in the car and at all times he was respectful, polite and courteous to the man who entered the garage of his private residence, even though he was suspicious of him.
14 Detective Constable Senior Barnes’s evidence is that he was threatened by Mr Watkins and was extremely frightened by him. He states that Mr Watkins walked towards him quite quickly holding the rifle in both hands with the muzzle moving around so that at times it was pointing directly at him. He felt he had to save his life and retreat because his family was sitting in the vehicle watching and he had fears for their safety as well.
15 Separate evidence was provided by Senior Constable Stanley Waugh with whom Detective Barnes appears to have discussed the incident. His evidence was that Detective Barnes never complained to him about fearing for his life and specifically Senior Constable Waugh stated that Detective Barnes was never threatened with the firearm, it was “more his feeling of being uncomfortable about it”. Senior Constable Waugh also gave evidence that he never charged Mr Watkins with assault or intimidation or any similar offence in relation to the matter with Detective Barnes attending Mr Watkins’s property. I accept that Mr Watkins did not threaten Detective Senior Constable Barnes.
16 In giving evidence, Senior Constable Waugh noted that it was his preference that Mr Watkins be charged in relation to all three breaches but the Department of Public Prosecutions decided to only go ahead on the first charge.
The Applicant’s Case
17 Mr Watkins’s representatives asked the Tribunal to consider the time period of, and the reason for, the firearms being stored unsafely. Those matters are set out above. He stated that the possibility of anyone else using the weapons was remote given the fact that Mr Watkins lives on a rural property and that the ammunition was stored separately to the guns and that the third gun was stored in a gun safe at the hand of a trusted friend. Mr Watkins’s choice in leaving it there rather than taking it in to town was the safest one available. Mr Watkins also relied on his references, the fact that he had done additional safety training and that he had had no previous breaches of the Firearms Act 1996. He drew the attention of the Tribunal to his remorse for his actions and the potential hardship to him should the guns not be returned.
18 The Applicant’s representative directed the Tribunal’s attention to Yaghi v Commissioner of Police, New South Wales Police [2001] NSWADT 91 at 44 and the criteria listed at that paragraph relevant to consideration of revocation namely:
19 In Yaghi the decision of the Commissioner was set aside but it rested on public safety rather than the discretionary powers found in sections 24(2(b)(ii) and (iii). I note Mr Yaghi was found by the Tribunal to be present with his firearms.
- the public or private location of the licensee's firearms;
- the presence or absence of the licensee at that location;
- the security of the location;
- the accessibility by unlicensed persons to the firearms;
- the time of day the firearms were unsafely kept;
- whether the firearms were loaded or not;
- the location of ammunition for the firearms;
- whether the nature of the breach was fundamental, trivial or excusable; and
- whether the safety of the public has been or is likely to be compromised.
20 Mr Watkins’s representative also relied on Cook v The Commissioner of Police [2003] NSWADT 30 at 27, where the Tribunal cited Phegan -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 127, as authority for the principle that for a revocation 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. I note that in this case the Commissioner's decision to revoke Mr Cook's firearms licence was affirmed.
21 Finally, Mr Watkins’s representative drew the Tribunal’s attention to the considerations set out in Rosenboom v Commissioner of Police, New South Wales Police Service [2006] NSWADT 10 at paragraph 24. These are the principles relevant to the revocation of a licence where the licence holder has failed to meet the storage requirements of the Firearms Act 1996 as summarised in Uzelac v Commissioner of Police, Ministry of Police [2003] NSWADT 226 and are set out below.
The Respondent’s Case
22 The Commissioner’s agent cited authorities to support the contention that breaches of the Firearms Act 1996 were to be treated seriously. These included R v Tolley [2004] NSWCCA165 at paragraph 51; R v Cromerty [2004] NSWCCA 54; R v Thurgar (1999) 51 A Crim R 109 and Muller v Lalic [2000] NSWCA 50.
23 The Commissioner also highlighted that one of the underlying policies of the legislation is to imporove public safety, see Cleofe v The Commissioner of Police,New South Wales Police [2001] NSWADT 2 at 31. The Commissioner’s agent cited Morris v The Commissioner of Police [2002] NSWADT 223 at 32 where the Deputy President’s comments in Ward v Commissioner of Police, New South Wales Police [2000] NSWADT 28 were adopted. Although it was acknowledged that there will be circumstances where the continuation of the privilege is justified, the Deputy President stated:
24 The Commissioner relied on a number of authorities in which it has been held that contravention in respect of failing to meet the safe storage requirements of the Act are fundamental, going to the heart of the principles and objectives of the Act: Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75 at 19-20, 24-25; Bevan v The Commissioner of Police, New South Wales Police [2004] NSWADT 1 at 26 and Aubrey v Commissioner of Police, New South Wales Police [2005] ADT 266 at paras 21.
“it is not in the public interest that those people who have failed to comply with the statutory obligations to store firearms safetly should continue to be afforded the privilege of holding a firearms licence.”
25 In Aubrey it was stated at paragraph 21:
26 The Tribunal was directed to Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at paragraph 22 where it was stated that:
“The objects and principles of the Act state that firearms are a privilege and inherent in the requirements is that persons who have access to firearms must act responsibly. 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. The principle issue then is whether there is a risk to the safety of the public if Mr Aubrey retains the licence.”
27 It was further put that the public interest requires that all licensees be aware of and comply with the legislative requirements: Cook v The Commissioner of Police, New South Wales Police Service [2003] NSWADT 30 and that a licence holder must not only understand and comprehend the guidelines and laws that govern them but must also act in accordance with them: Bottomley v Commissioner of Police, New South Wales Police [2005] NSWADT 211.
"...a decision maker should not shy from an exercise of [their] discretion merely on the grounds that the licensee may suffer hardship and or inconvenience.” See also Walker v The Commissioner of Police [2002] NSWADT 225.
28 The Respondent also referred to the specific sections of the Firearms Act 1996 relating to safe storage including section 39 which states that:
Relevant Law
“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.”
29 The role of the Tribunal is to determine whether, having regard to the underlying facts in the matter and the applicable law, the decision of the Commissioner is the correct and preferable one, see section 63 Administrative Decisions Tribunal Act 1997. The Tribunal undertakes a review of the merits of the original decision and is obliged to reconsider all of the material first considered, together with any other relevant material so as to confirm the original decision, vary it, or set it aside and substitute another (see Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77).
30 The Tribunal is to make its own decision and there is no presumption that the decision of the Commissioner is correct (section 63(1) of the Administrative Decisions Tribunal Act; McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357).
31 Section 24(2)(b)(ii) of the Firearms Act1996 provides that the Commissioner of Police may revoke a firearms licence if the licensee contravenes any provision of the Act or the Regulations, whether or not the licensee has been convicted of an offence for the contravention.
32 Clause 17 of the Firearms (General) Regulation1997 (Regulation 19 of the Firearms Regulation 2006) provides that a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is issued to continue to hold it.
Exercise of Discretion
33 It is clear from the use of the word “may” in each section 24(2)(b)(ii) of the Firearms Act 1996 and Regulation 17 of the Firearms Regulation 1997, that the Commissioner is given a discretion to revoke a licence and compulsory revocation is not required (as is provided by other sections in the Act). For example, in Haynes v Commissioner of Police, New South Wales Police Service [2001] NSWADT 52, the Tribunal confirmed the distinction in Botrosv Commissioner of Police, New South Wales Police Service [2000] NSWADT 6 between the exercise of mandatory refusal of an application and the discretionary power that relates to the revocation of a licence, in that revocation involves the exercise of judgment.
34 In Lynch v Commissioner of Police, New South Wales Police (GD) [2006] NSWADTAP 43 the Appeal Panel stated at paragraph 37:
Public Safety
“Once the circumstance to which s 24(2)(b)(ii) is directed (contravention) is present, the Commissioner ‘may’ revoke the licence. No guidance is given in the provision as to what factors might be relevant. Without seeking to be exhaustive, relevant factors would, we think, include the gravity of the contraventions, any history of contraventions, mitigating circumstances and general public policy considerations.”
35 The general public policy considerations to be taken into account in exercising the discretion include the principles and objectives of the Act, namely to confirm firearm possession and use as a privilege that is conditional on the overriding need to ensure and improve public safety (see for example Yaghi v Commissioner of Police, New South Wales Police Service [2001] NSWADT 91 at 37, Bevan and Commissioner of Police, NSW Commissioner of Police Service [2004] NSWADT 1 at 17 and Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50 at 23).
36 Public safety has often been confirmed as the principal issue, that is whether there is a risk to the safety of the public if the applicant retains the licence (see for example Vella -v- Commissioner of Police, NSW Police Service [2003] NSWADT 91 at 35).
37 In relation to public safety; the Tribunal’s Deputy President has stated (see Ward v Commissioner of Police, New South Wales Police [2002] NSWADT 28 at 28):
Public Interest
“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”.
38 Public interest is not defined in the Firearms Act 1996. However, the Tribunal's Appeal Panel considered the public interest in the context of security industry licencing in Commissioner of Police, New South Wales Police Service v Toleafoa [1999] NSWADTAP 9. At paragraph 25 it stated that the public interest is:
39 These comments have been held to apply equally to the firearms legislation (see Ward at para 33).
"... an inherently broad concept giving the [decision maker] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual.”
40 See also Comalco Aluminium (Bell Bay) Ltd v O’Connor & Ors (1995) 131 ALR 657 at 681:
Safe Storage
"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".
41 Specific considerations relevant to breach of the Firearms Act 1996 storage provisions are well established and were summarised in Uzelac v Commissioner of Police, Ministry of Police [2003] NSWADT 226 at 19ff, namely:
42 In relation to the first point, the reason for failing to store the firearm safely, the Tribunal has also stated in Moody v Commissioner of Police, New South Wales Police [2002] NSWADT 146 at 31:
“- while there is no onus of proof on either party, 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 that take their matter outside the ordinary case. (Phegan -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 127; Hart -v- Commissioner of Police, New South Wales Police Service [2003] NSW ADT 114 [51] to [54]);
- the principal issue is whether there is a risk to the safety of the public if the applicant retains the licence. (Vella -v- Commissioner of Police, NSW Police Service [2003] NSWADT 91 at [35]). Relevant considerations include:
- the reason for failing to store the firearm safely;
- the length of time the firearm was not stored safely;
- the potential or real danger posed by failure to store the firearm safely;
- the person's previous conduct in relation to storage of firearms and any related matter;
- the person's understanding of the importance of safe storage and the likelihood that firearms will not be stored safely in the future; and
- the reason the person has a firearms licence, keeping in mind that firearms possession and use is a privilege that is conditional on the overriding need to ensure public safety. (Moody -v- Commissioner of Police, New South Wales Police [2002] NSWADT 146 at [25])
- in relation to the first three considerations, if the breaches of the Act or regulations are trivial or excusable, as distinct from fundamental, there is less likelihood of a risk to public safety (Cusumano -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 50
- the discretion to revoke a licence must be exercised keeping in mind the nature of the conduct and the principles and objects of the Act; (Yaghi -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 91 at [37].”
43 In Lynch v Commissioner of Police, New South Wales Police [2006] NSWADT 80 at paragraph 33, the Tribunal when considering an argument based on the fact that the firearm in question had pieces missing and so was not operational, stated that:
“In the ordinary case of failing to store firearms safely with no satisfactory explanation for that breach and no other extenuating circumstances, the Commissioner will be justified in revoking the licence.”
Impact on Licensee
“this suggests a lack of understanding of the reasoning behind the registration and storage requirements. The risk to the public is not removed simply because a firearm is not operational. Such a firearm can still be used in a hold-up or to threaten someone. A person not familiar with firearms might not make the differentiation between an operational firearm and one that had pieces missing if the firearm was pointed at them. They might reasonably believe that the rifle could cause them damage. There can be no doubt that it could give rise to an apprehension or fear of harm. The storage requirements are strict as non-compliance can easily compromise safety.”
44 Further, the impact on the individual licensee is not determinative as stated in Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at paragraph 22:
Decision
“..a decision maker should not shy from an exercise of [the] discretion merely on the grounds that the licensee may suffer hardship and or inconvenience. While not determinative, an offence under the Firearms Act and/or a breach of a condition of licence will, in my view, be highly relevant to a decision to revoke a licence. All of the circumstances surrounding the offence must be taken into account.”
45 The correct and preferable decision is that Mr Watkins’ Firearms Category AB Licence no 407815578 be revoked. Although Mr Watkins was only charged with one breach he acknowledged that all three occurred and it is all three that are relevant to this application.
46 At the time of the police audit, Mr Watkins’s three guns were not stored properly in accordance with legislative requirements. The breaches occurred at two separate locations where there were persons who were not authorised to use or possess firearms. At one of the premises there was also a small child. Mr Watkins was not at the same premises as his third gun.
47 The fact that the ammunition was stored separately and, in relation to one of the guns, that Mr Watkins formed the view that it was safer to leave it at Mr Shippey’s place than take it into town, is insufficient to persuade me that the breaches were minor and excusable. The legislative requirements for safe storage are not that the ammunition be separately stored. No evidence was led that Mr Watkins had to go into town as a matter of urgency rather than returning home first to properly store his gun.
48 While I accept Mr Watkins’s explanations in relation to each breach of the Act none of those explanations provide mitigating circumstances and the fact that there were three simultaneous breaches at the time of the police audit suggests that Mr Watkins does not have a serious enough appreciation of firearms safety or otherwise chose to act other than in accordance with the legislative requirements. The combination of three breaches at two different locations means that the breaches cannot be described as trivial.
49 There is nothing in the explanations provided that take Mr Watkins’s breaches outside the ordinary case. His breaches and his explanations for them further demonstrate that Mr Watkins lacks an understanding of the reasoning behind the registration and storage requirements. In this context although Mr Watkins has demonstrated remorse, provided references and has undertaken further training, it is inadequate to demonstrate a sufficient understanding and appreciation of the importance of safe storage. Nor is the fact that he has not been in breach of the legislation before a complete answer. Mr Watkins states that he is aware of the safety requirements under the Act but that alone is insufficient as he must also act in accordance with them.
50 The legislative provisions make clear that firearms possession and use is a privilege conditional on the overriding need to ensure and improve public safety. Although public safety was not in fact threatened by Mr Watkins’s breaches, the risk to it was not mitigated by the fact that the guns were on rural or remote properties as in each instance there were people on the properties who were not licensed to use the firearms.
51 Further, in light of the above, it cannot be said that it is in the public interest for Mr Watkins to continue to hold a firearms licence. This ground was available to the Commissioner and although it may not now be as strong as Mr Watkins has completed further firearms safety training and demonstrated remorse it is still available. The fact that Mr Watkins’s livelihood is threatened by the revocation does not of itself outweigh the public interest particularly in circumstances where no detail as to the actual impact on his livelihood was provided to the Tribunal.
52 The Firearms Act 1996 Revocation Notice referred to section 24(2)(b)(ii) of the Firearms Act1996 and clause 17 of the Firearms (General) Regulation 1997. The Internal Review also referenced section 24(2)(b)(iii) of the Firearms Act as did the Commissioner’s agent when before the Tribunal; however, no separate arguments were made in relation to this section of the Act and no distinction was drawn between the different heads of power by either party. In any event, the decision is affirmed on the basis of section 24(2)(b)(ii) and clause 17 so there is no need for me to consider section 24(2)(b)(iii).
53 Accordingly, the decision of the Commissioner of Police, New South Wales Police Service to revoke Mr Watkins’s Category AB Firearm licence number 407815578 pursuant to Section 24(2)(b)(ii) of the Firearms Act1996 and Regulation 17 of the Firearms (General) Regulation 1997 is affirmed.
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