Webb v Commissioner of Police, New South Wales Police Service
[2004] NSWADT 110
•06/04/2004
CITATION: Webb -v- Commissioner of Police, New South Wales Police [2004] NSWADT 110 DIVISION: General Division PARTIES: APPLICANT
Rowan Matthew Webb
RESPONDENT
Commissioner of Police, New South Wales PoliceFILE NUMBER: 043069 HEARING DATES: 20/05/2004 SUBMISSIONS CLOSED: 05/20/2004 DATE OF DECISION:
06/04/2004BEFORE: 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
Firearms (General) Regulation 1997
Firearms Act 1996CASES CITED: Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254
Bazouni & Ors v Commissioner of Police, New South Wales Police Service [2002] NSWADT 100
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Vella v The Commissioner of Police [2003] NSWADT 91
Ward v Commissioner of Police (2000) NSWADT 28REPRESENTATION: APPLICANT
RESPONDENT
In person
A Arnott, solicitorORDERS: The Commissioner's decision to revoke Mr Webb's Category AB firearms licence is set aside.
REASONS FOR DECISION
1 On 17 March 2003 Mr Rowan Webb lodged an application with the Tribunal for review of a decision made by the Commissioner of Police (“the Commissioner”). That decision was to revoke Mr Webb’s Category AB firearms licence held under the Firearms Act 1996 (“the Act”).
Background
2 Mr Webb was issued with a Category AB firearms licence on 9 August 2001 and it was due to expire on 7 September 2006. However, this licence was revoked on 18 November 2003. On 25 September 2003 Mr Webb made an application for a Permit to acquire a Category B firearm and on 9 October 2003 he made an application for a Permit to acquire a Category A firearm. These applications were refused on 18 November 2003. The refusal was linked to the revocation of Mr Webb’s licence and the view that in order to acquire the firearms Mr Webb must be the holder of a current licence or permit authorising the possession or use of the type of firearm he applied to acquire.
3 Mr Webb’s licence was revoked as a consequence of two incidents. The first occurred on 20 June 2003 and the second on 13 November 2003. There is no significant dispute about the facts of those incidents. The facts sheets prepared by the Commissioner in relation to those incidents provide a reasonable account of the events.
4 The facts sheet prepared in relation to the first incident states:
5 The facts sheet prepared in relation to the second incident states:
“On Friday the 20th of June, 2003 the defendant Rowan Webb, David Thurling and Nathan Tetley travelled to a Rural Property situated at Tinderry Road, Michelago, in a Motor Vehicle owned by Rowan Webb. Webb had with him a.22 Calibre Voere Voehrenvach Rifle serial 732224, which is registered in NSW. Webb is the holder of a current New South Wales Shooters Licence No 408319242. Nathan Tetley was in possession of.22 magnum rifle which is not registered and Nathan Tetley does not hold a current shooters licence in any state or territory. The defendant, Rowan Webb and Nathan Tetley then drove around the property 'spot light' shooting rabbits. Both firearms were used and both persons were shooting. They then returned to a camp site on the property. Rowan Tetley then took hold of his unregistered rifle, it discharged and he shot himself through the hand. The defendant then drove Rowan Tetley to Canberra Hospital where he was admitted. On the 21st of June, 2003 Rowan Webb attended Queanbeyan Police Station where he participated in an electronic record of interview in which he stated that the only gun with them was the registered firearm, owned by him and this was the gun that Nathan Tetley had shot himself with. Nathan Webb was then issued a CAN for the offence of 'Not safe keep Firearm' Nathan Tetley also supplied a signed statement supporting this version. On the 22nd of August, 2003 the defendant, Rowan Webb attended Queanbeyan Police Station and stated that the story given was false. As a result he was again electronically interviewed stating that they had made the story up because Tetley was unlicensed and the rifle was unregistered. Nathan Tetley was subsequently interviewed and freely admitted that he had taken an unregistered gun to the property (this gun since stolen) and this was the gun that had discharged, injuring his hand. The registered Voere Voehrenvach, originally held out as causing the injury, is on hand at Queanbeyan Police Station and a direction is sought regarding this firearm.”
6 On 18 December 2003 Mr Webb sought an internal review of the Commissioner’s decisions. The internal review was finalised on 20 February 2004 and the decision was taken that the Commissioner's decision is to stand.
“About 11.50pm on the evening of Thursday the 13th of November 2003, police attended the area of Acacia Drive and Elm Way in Jerrabomberra in relation to an outstanding noise complaint.
Police parked on Acacia Drive and attempted to listen for the direction of the noisy party. Police observed a white ford falcon light truck leave the intersection of Acacia Drive and Elm Way without indicating and then mounting the nearside gutter. The vehicle appeared to swerve erratically. As a result police stopped the vehicle for the purposes of a breath test.
The driver, Mr Rowan Mathew Webb was seen to occupy the front drivers seat. He submitted to a roadside breath test which proved positive. Police informed the accused that he was under arrest and that he would be required to return to Queanbeyan Police Station to undergo a breath analysis. He said, [expletive]. The accused became abusive and the assistance of other police vehicles were called. The accused was seen to throw his mobile phone to the ground and it was seen to smash.
He was assisted to the rear of a police caged vehicle where he was placed inside. He continued to shout abuse out to his girlfriend who had been attempting to stop him from driving.
Police returned to Queanbeyan Police Station where he was introduced to the custody manager. Upon searching the accused, he was found not to have his keys. He said, "I threw them out the window so you [expletive] couldn't have them".
The accused was given the form of demand, as a result the accused provided insufficient samples on three occasions. He was then informed of the offence he may commit if he was unable to provide a sufficient sample. He was offered an additional opportunity to provide a sample, to which agreed. The accused blew positive to breath analysis and a reading of 0.115 g of alcohol per 100 millilitres of blood was obtained. He was asked whether he required the services of a Doctor, to which he replied, "[expletive]".
The accused was given a breath analysis certificate ... He was also issued with a Notice of Suspension ...”
7 The Commissioner’s delegate provided written reasons for the decision and Mr Webb was provided with a copy of those reasons.
Applicable legislation
8 The legislation of most relevance to these proceedings is the Firearms Act 1996 (“the Act”) and the Firearms (General) Regulation 1997 (“the Regulation”). The objects of the Act are set out in section 3 which provides:
9 A licence is held subject to conditions. Section 19 of the Act sets out conditions relevant to these proceedings as follows:
“3 Principles and objects of Act
(1) The underlying principles of this Act are:
(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and
(b) to improve public safety:
(i) by imposing strict controls on the possession and use of firearms, and
(ii) by promoting the safe and responsible storage and use of firearms, and
(c) to facilitate a national approach to the control of firearms.
(2) The objects of this Act are as follows:
(a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,
(b) to establish an integrated licensing and registration scheme for all firearms,
(c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,
(d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms,
(e) to ensure that firearms are stored and conveyed in a safe and secure manner,
(f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.”
10 The relevant safe keeping and storage requirements are set out in Part 4 of the Act as follows:
“19 Conditions of licence
(1) A licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose.
(2) Without limiting subsection (1), each licence is subject to the following conditions:
(a) the licensee must comply with the relevant safe keeping and storage requirements under this Act,
(b) the licensee must not permit any other person to possess or use any firearm in the licensee’s possession if that other person is not authorised to possess or use the firearm,
(c) the licensee must, in accordance with such arrangements as are agreed on by the licensee and the Commissioner, or, in the case of a licensed firearms dealer, at any reasonable time, permit inspection by a police officer (or such other person as may be prescribed by the regulations) of the licensee’s facilities in respect of the storage and safe keeping of the firearms in the licensee’s possession,
(d) the licensee must not possess, at any one time, any amount of ammunition that exceeds the amount (if any) prescribed by the regulations, unless authorised in writing by the Commissioner,
(e) the licence cannot be transferred to another person.
(3) A licence is subject to such other conditions as may be prescribed by the regulations.”
11 The Regulation makes provision for the issue of a licence only if the applicant understands the requirements of the Act concerning firearm safety and storage. Clause 7 of the Regulation 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.
40 Category A and category B licence requirements
(1) The holder of a category A or category B licence must comply with the following requirements in respect of any firearm to which the licence applies:
(a) when any such firearm is not actually being used or carried, it must be stored in a locked receptacle of a type approved by the Commissioner and that is constructed of hard wood or steel and not easily penetrable,
(b) if such a receptacle weighs less than 150 kilograms when empty, it must be fixed in order to prevent its easy removal,
(c) the locks of such a receptacle must be of solid metal and be of a type approved by the Commissioner,
(d) any ammunition for the firearm must be stored in a locked container of a type approved by the Commissioner and that is kept separate from the receptacle containing any such firearm,
(e) such other requirements relating to security and safe storage as may be prescribed by the regulations.
Maximum penalty: 20 penalty units or imprisonment for 12 months, or both.
(2) A licensee does not have to comply with the requirements of this section if the licensee satisfies the Commissioner that the licensee has provided alternative arrangements for the storage of firearms in the licensee’s possession that are of a standard not less than the requirements set out in this section.”
12 The power of the Commissioner to revoke a firearms licence is set out in section 24 of the Act as follows:
“7 Licence applicant's understanding of requirements concerning firearm safety and storage
Before being issued with a licence, the applicant must prove to the Commissioner's satisfaction:
(a) that the applicant is aware of, and understands, the requirements of the Act concerning firearm safety and storage, and
(b) that the applicant will, if issued with a licence, be able to comply with those requirements.”
13 The Commissioner may also revoke a firearms licence on public interest grounds pursuant to clause 17 of the Regulation. Clause 17 provides as follows:
24 Revocation of licence
(1) A licence that authorises a person to possess or use a firearm is automatically revoked if the licensee becomes subject to a firearms prohibition order or an apprehended violence order.
(1A) The Commissioner must revoke a licence that is held for the purpose of employment as an armed security guard (within the meaning of the Security Industry Act 1997) if the licensee has failed to undertake any firearm safety training required under this Act or the regulations.
(2) A licence may be revoked:
(a) for any reason for which the licensee would be required to be refused a licence of the same kind, or
(b) if the licensee:
(i) supplied information which was (to the licensee’s knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or
(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or
(iii) contravenes any condition of the licence, or
(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or
(d) for any other reason prescribed by the regulations.
(3) The Commissioner of Police may revoke a licence by serving personally or by post on the licensee a notice stating that the licence is revoked and the reason for revoking it.
(4) The revocation of a licence by such a notice takes effect when the notice is served or on a later date specified in the notice.
(5) The Commissioner may, by serving a further notice on the holder of a licence, cancel a notice revoking a licence before the notice takes effect.”
14 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 either to 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) .
“17 Revocation of licence - additional reasons
In accordance with section 24(2)(d) of the Act, 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.”
15 These are not adversarial proceedings in which Mr Webb carries an onus of proof. Mr Webb, by making the application, triggers a process of merits review by the Tribunal. Mr Webb 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 Webb 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”).
16 Section 63 of the ADT Act sets out the approach to be taken by the Tribunal in relation to an application for a review of a reviewable decision. Section 63 states:
Mr Webb’s case
“63 Determination of review by Tribunal
(1) 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 the following:
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.
(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:
(a) to affirm the reviewable decision, or
(b) to vary the reviewable decision, or
(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or
(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.”
17 Mr Webb appeared and gave evidence in support of his application. He was also subjected to cross-examination. His case is essential as set out in the application dated 22 January 2004 (“the internal review application”) by his solicitor to the Commissioner seeking an internal review of the original decision. The internal review application stated:
“ The Offence
1. As the Commission may already know, the offence with which Mr Webb was convicted involved a firearm incident. Mr Webb submits however, that although the incident involved a firearm, he was not responsible for the forearm itself, and nor did the incident occur due to any act or omission on the part of Mr Webb.
2. Mr Webb seriously regrets the mistake he made in making a false representation to the police. His remorse and contrition in relation to the incident has been demonstrated by his plea of guilty to the charge at the first available opportunity.
Personal Circumstances
3. Mr Webb's family have owned rural properties throughout his life, his father having been on the land for the last 53 years, and have been in possession of firearms out of necessity for the day to day running of the property. Mr Webb's father, Eric Webb owns a large, 412 hectare property in Braidwood known as "Westwood". Mr Webb frequents the property up to twice weekly. Eric Webb says that he has problems with feral pigs, dogs, foxes and rabbits on the property. In addition, he often has to shoot livestock that have been injured or attacked by feral dogs. Eric Webb and his wife are often away from the property and at such times, Mr Webb looks after the place. This includes seeing to the welfare of the livestock.
4. Apart from his obligations to his family, Mr Webb has also in the past undertaken to assist in controlling the numbers of feral animals on properties neighbouring his father’s property. Mr Webb also assists Ms Leanne Thurley on her property at Michelago in the control of feral pigs which have been known to attack lambs on numerous occasion.
5. Mr Webb aspires to become a professional "roo shooter", a job which requires special skill and careful handling of firearms.
6. Mr Webb submits that to him, safety and firearms is of paramount importance, saying that the Firearms Safety Manual NSW is his "bible". He says that he is the only person who handles his own rifles and ensures that his own rifles are secure. He says that "safety is everything" and he takes pride in the fact that he got 100% in his test on firearm safety.
7. For Mr Webb, owning firearms is necessary for his obligations to his family and friends, however, Mr Webb appreciates that they also carry an immense responsibility, as they are inherently dangerous if not approached with caution and handled with uncompromising safety.
8. Mr Webb submits that the Commissioner can be satisfied that he is aware of and understands the requirements of the Act concerning firearm safety and storage and that he is able to comply with those requirements (Section 7 Firearms Regulation 1997). The issue for the Commissioner is whether it is not in the public interest that Mr Webb holds a licence. On this issue Mr Webb submits that it is in the public interest that he holds a firearms licence on the basis of his use of the firearm more often than not, for the control of feral animals that threaten native wild life and livestock. In addition, Mr Webb says that as long as he hold a firearms licence, he will continue to maintain his own safety standards and will be vocal as to safety issues around anyone he happens to be shooting with.
18 Mr Webb also provided an outline of submissions annexed to his application to the Tribunal. That outline of submissions was in the following terms:
9. Mr Webb's conduct in respect of the offence he was convicted of, Mr Webb submits that it was a very grave mistake he made which he is unlikely to ever make again. His behaviour was an aberration and does not in itself detract from his general good character. Mr Webb respectfully requests that the Commissioner reconsider the revocation and allow him to be a holder of licence once again.”
19 The documents to which Mr Webb referred are contained in the bundle of materials filed by the Commissioner and are before the Tribunal. They support the assertions that Mr Webb has made. Mr Webb's evidence before the Tribunal was consistent with these submissions and those contained in the internal review application. He disputed the Commissioner’s assertion that at the time of the 20 June 2003 incident he was aware that Mr Tetley was not a licensed shooter and that he was using an unregistered firearm. His evidence is that he did not become aware of these facts until after the incident.
“The firearms licence was revoked for three primary reasons. One of these reasons involved Mr Nathan Tetley shooting himself through the left index finger, requiring surgery, and our subsequent statements to the police and my later retraction. (Please read the Internal Review-Statement of Reasons for a full account of this incident.) Mr Tetley is over the age of eighteen, and therefore responsible for his actions. I did not provide Mr Tetley with a rifle or ammunition, and while I do not condone his having an unregistered firearm, I feel that it was his responsibility for the safety and maintenance of that firearm. I also feel that I did not use my best judgement when this act occurred. Mr Tetley was not licensed at the time of the accident.
A second reason for my licence revocation involved firearms safekeeping, and the fact that my safekeeping provisions did not fully comply with laws governing this. The police at the time also noted that I had gone to great lengths to comply with the laws. The cabinet has since been modified and on recent inspection, was found to fully comply. (Please refer to Certificate of Inspection, dated 7 January 2004.) My firearms licence was a category AB licence and it was noted in the Internal Review - Statement of Reasons that a category 'C' firearm would be kept in a cabinet to which I would have access. This category 'C' firearm has since been placed into the possession of Fyshwick Firearms. (Please refer to the enclosed Dealer's Return slip.)”
20 Mr Eric Webb, Mr Webb's father, also appeared and gave evidence in support of Mr Webb's application. He is clearly proud of his son. He gave detailed evidence as to the extent to which Mr Webb had been affected by the incidents that lead to the loss of his firearms licence. In particular he gave evidence that the conduct was out of character, that Mr Webb had suffered great guilt and distress because of the fabricated story given to police in relation of the incident of 20 June 2003 and that this distress was inextricably linked to the second incident. He painted a picture of a responsible individual, who is in secure employment that allows him access to restricted government buildings and which required Mr Webb to pass stringent security checks; an individual who genuinely regrets his actions and who can be relied on to never repeat them.
21 A testimonial provided on behalf of Mr Webb by Mr Greg Owen testified to the conscientious competent manner in which Mr Webb approaches his duties as an employee.
22 Mr Eric Webb confirmed his reliance on Mr Webb to assist him in his role as a primary producer and the day to day running of the property. Mr Webb assists him in dealing with the problems with feral pigs, dogs, foxes and rabbits on the property. In addition, he often calls Mr Webb to shoot injured or infirmed livestock. Mr Eric Webb suffers from severe arthritis and this inhibits his ability to undertake many of these tasks. Mr Eric Webb is often away from the property and at such times, Mr Webb looks after the place.
23 In summary, Mr Webb says that he is aware of and understands the obligations imposed on a firearms licence holder and that he is able to comply with those obligations. He says that he is of good character and that public safety would not be compromised if his licence is reinstated. He seeks the reinstatement of his licence so that he will be able to deal with the sick or injured stock when the need arises in the future.
The Commissioner’s case
24 Mr Arnott made submissions in support of the Commissioner’s case. He relies on those submissions and also repeats the arguments set out in the reasons for internal review. Those reasons provided, in part:
25 Mr Arnott submitted that it is clear from the course of conduct demonstrated by Mr Webb that he is not a fit and proper person to hold a firearms licence in NSW. Mr Arnott further submitted that public safety would be compromised should Mr Webb regain his firearms licence.
“ D. REASONING PROCESS:
The Firearms Act 1996 ('Act') sets up a scheme to licence people to possess and use firearms. There are several provisions, which allow the Commissioner to revoke 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 your solicitor 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 firearms.
Permit to Acquire (PTA)
I accept your solicitor's submission that the refusal of your PTA application is linked to the fact that your firearms licence was revoked. Therefore, should your firearms licence be reinstated the reason for the refusal of the PTA would no longer exist and the PTA could then be issued. I will therefore first address the issues surrounding the revocation of your firearms
Safekeeping
I note that on 9 September 2003 Police inspected your premises at 109 Munro Road, Queanbeyan, and found your safekeeping provisions did not fully comply. Your firearms licence was suspended as a result.
I further note your solicitor's provision of a Certificate of Inspection for 109 Munro Road, Queanbeyan, approving safekeeping relating to your father's Category ABC firearms licence. This raises concerns that, should your firearms licence be reinstated, your father intends to store his Category ABC firearms in a firearms cabinet to which you would have access. As you are aware, your firearms licence did not authorise access to Category C firearms.
Reasons for Needing a Firearms Licence
I note your solicitor's advice that your need for possession and use of firearms is due to family obligations, principally to assist your father with feral animal control and destruction of injured livestock on his 412 hectare property and to help his neighbours with feral animal control. She also advised of your ambition to become a professional too shooter.
There is no question that feral animal control is in the public's interest. However, I believe other means are available to your father and his neighbours to achieve this feral animal control. There are many firearms licence holders in NSW, currently authorised to use firearms for Recreational Hunting/Vermin Control, who seek properties on which to shoot. The issue here is whether it is in the public's interest that you personally continue to hold a firearms licence. In this regard I note the advice of The Hon Mr J W Shaw (Attorney General), who said on 25 June 1996 in the Second Reading speech (at 3557) relating to the Act: "The legislation puts the public's right to safety before the privilege of gun ownership. "
Firearms Accident
I refer to the firearms accident on 20 June 2003 that occurred when you were shooting rabbits on a rural property with Nathan Tetley and another male person. You had a registered firearm in your possession; Mr Tetley was unlicensed and his rifle was unregistered. Both you and Mr Tetley were shooting and both firearms were used.
When you had finished shooting and returned to the campsite on the property, Mr Tetley's firearm, a loaded.22 Magnum bolt action rifle, was leaning on the front seat of your car with the barrel aiming towards the vehicle glovebox. When you had vacated the vehicle, Mr Tetley grasped his firearm which accidentally discharged, the bullet travelling through his left index finger. His injury required extensive surgery and ongoing treatment
I accept your solicitor assertion that you were not responsible for the firearm. I also agree that the incident did not occur due to any act or omission on your part. However, I note your choice to participate in an activity with an unlicensed shooter, using an unregistered firearm.
On 21 June 2003, during an electronic interview with Police, you stated that the only firearm present on 20 June 2003 was your registered firearm which Nathan Tetley had discharged, shooting himself As a result you were charged with "Not Safekeep Firearm".
I note your solicitor's advice that your remorse and contrition was demonstrated by your guilty plea at the first available opportunity. However, I note it was not until 22 August 2003, some six weeks later and following your charge for unsafe keep, that you retracted your false statement. You advised Police that you had made up the story because Nathan Tetley was unlicensed and the rifle involved in the shooting was unregistered, facts which Mr Tetley later confirmed.
I note your solicitor's submission that you will be vocal as to safety issues around anyone you happen to be shooting with However, I can place little weight upon this statement as you have shown no evidence of your claim to encourage other firearm users towards safe practice. In fact, quite the contrary in that on 21 June 2003 you told Police you were aware that your friend's loaded firearm was leaning against the front seat of your car without the bolt being removed from the firearm in accordance with safe practice.
On 4 September 2003 Mr Tetley reported to Police that he had hidden the unregistered firearm, minus the rifle bolt and ammunition clip, in bushland. He further advised Police it was allegedly stolen about two days after the incident on 20 June 2003. 1 place great weight upon the fact that. had you not chosen to withhold vital information from Police, they may have become aware of the existence of an unregistered firearm which they could have retrieved prior to its theft.
Moral character
I note your conviction on 20 October 2003 by Queanbeyan Local Court on a charge of "False Representation Resulting in Police Investigation" where you were fined $500. When considering whether a person should be afforded the privilege of firearms possession in this State, it has been held that any previous breaches of the law, and any propensity towards offending against the law must be regarded as of crucial importance.
I also note your solicitor's contention that your behaviour in supplying a false statement to Police was an aberration and does not itself detract from your general good character. However, I note facts presented to the Queanbeyan Local Court on 1 December 2003 which lead to your conviction on 1 December 2003 for "Drive with Middle Range PCA".
On 13 November 2003 Police noticed your erratic driving and stopped your vehicle for the purpose of administering a breath test. When your test was positive and you were arrested, you said to the police officers "[expletive]". You later told Police you had thrown your car keys "out of the window so you [expletive] couldn't have them".
I have formed the opinion that your obvious contempt for Police is amply demonstrated, not only by your false statement on 21 June 2003, but more recently on 13 November 2003 by your offensive comments to officers of the law in the course of their duties. Your conduct raises serious doubts regarding your solicitor's claim of your good character.
Not Fit and Proper Person
Regarding the issue of `fit and proper' the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. This list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
In Bazouni & Ors v Commissioner of Police, New South Wales Police Service [2002] NSWADT 100 (at 21) the Administrative Decisions Tribunal clearly stated that in determining whether a person is a "fit and proper" person to be issued with a licence, what is relevant is the conduct of the person and not the fact that the person has been charged or convicted in respect thereof. In my opinion your behaviour towards Police on 13 November 2003 clearly demonstrates a lack of moral integrity and respect for the law.
His Honour Justice Walters states that in his view "any previous breaches of the law, and any propensity towards attending against the law must be regarded as of crucial importance”. In this regard I note your conviction on 20 October 2003 by Queanbeyan Local Court for False Representation Resulting in Police Investigation" where you were fined $500. You further demonstrated your lack of moral character and disregard of the law by your actions on 13 November 2003. Your conduct led to a conviction on 1 December 2003 for "Drive with Middle Range PCA" where Queanbeyan Local Court imposed a fine of $300 and disqualified you from driving for 6 months.
It has been held that the term 'fit and proper person" in s. 11(3)(a) of the Act should also be given a wide meaning. The breadth and content of the concept must be derived from the Act and the purposes of the Act. In this case, Parliament has expressly stated what the underlying principles of the Act are. This includes the principle that the possession of a firearm is a privilege and that it is conditional on the overriding need to ensure public safety (see s. 3(1)(a)). Accordingly, the fitness and propriety of a person under the Act must be considered in the context of at all times ensuring public safety. Parliament has made this clear with the additional words ins. 11(3)(a) of "... and can be trusted to have possession of firearms without danger to public safety and the peace." That is, s. 11(3)(a) of the Act requires the Commissioner to determine the fitness and propriety of an applicant for a licence by having regard to the applicant's conduct and whether that conduct is such that he can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace.
I give some weight to your expressions of regret regarding your "grave mistake" in making a false statement to Police on 21 June 2003. However, I believe your knowledge of Mr Tetley's unregistered firearm placed upon you the moral and ethical responsibility to advise Police of its existence following your friend's accident. I believe the public has the right to expect such conduct from a person who has been granted the privilege of firearms ownership. Instead you chose to lie to Police. Notwithstanding you desire to protect your friend, I find your choice of action extremely irresponsible.
I accept that it was Mr Tetley who placed the firearm in bushland and the theft is therefore his responsibility. However, I am of the opinion that your false statement obstructed Police investigations and therefore contributed to this unregistered, untraceable 22 Magnum bolt action rifle coming into the hands of a criminal element. I cannot be satisfied that your actions were those of a firearms licence holder who can be trusted by the public to be responsible with firearms.
The Administrative Decisions Tribunal (ADT) has held that the principle issue is whether there is a risk to the safety of the public if the applicant (licence holder) retains the licence. Your statement was negligent to a degree that it obstructed Police from seizing an illegal firearm and thereby contributed to another untraceable firearm being on the streets. The result is that public safety is further compromised by your choice to give false information to Police.
I find it difficult to give much weight to your assurance that your conduct (in giving a false statement to Police) is unlikely to happen again. I do not believe that sufficient time has lapsed since that incident to allow you to demonstrate that your actions will never again put public safety at risk. Further your conduct towards Police, as recently as 13 November 2003, does not convince me that you have gained a new respect for the law and Police, respect which the public rightly requires from a firearms licence holder.
Conclusion
When considering an individual's right to hold a licence under the Act I have formed the view that any decision should be made on the basis that the Act calls for strict controls to be exercised in the fitness of individuals who seek to be licensed. The concept of `fit and proper' includes a person's moral integrity and rectitude of character so that they can be trusted by the public to hold the relevant licence.
The ADT has held that a conviction in itself will not ordinarily be enough to make an adverse finding on fitness and propriety. Further, it has been held that it is a person's conduct, not the fact of a conviction, which is to be considered. In this matter, it is your conduct in providing false statements to Police, and in abusing police officers in the course of their duties that raises concern about your ability to act in a responsible manner with respect to firearms.
The Act does not list the factors which a decision maker must take into account when deciding whether to revoke a person's licence. In those circumstances the discretion should be exercised in a way which promotes the principles and objects of the Act as set out in Section 3 of the Act. Clearly, legislation intends that public safety must be of paramount importance and that the system of firearms controls is intended to be very strict.
I hold the view that it is appropriate to consider and weigh up your interests against those of the wider community. I am not satisfied that public safety will not be compromised should you regain your firearms licence. I therefore believe the Commissioner made the correct decision to revoke your licence, and by extension, to refuse your PTA.
E. DECISION:
The Commissioner's decision to revoke your Category AB firearms licence is to stand.”
26 Mr Arnott referred to several authorities in support of the approach to be adopted in determining this matter. He argued that on the authority of the decision in Vella v The Commissioner of Police [2003] NSW ADT 91 at paragraph 35 the principle issue for the Tribunal is whether there is a risk to the safety of the public if Mr Webb retains the licence.
27 In Ward -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 the Tribunal’s Deputy President stated:
“27 One of the objects of the Act, as set out in s 3, is “to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety.” In determining whether Mr Ward is a fit and proper person to hold a licence consideration must be given to the circumstances surrounding his conviction for assault. 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 In assessing the risk, a person's conduct is to be considered, not merely the fact of a conviction: Bazouni & Ors v Commissioner of Police [2002] NSW ADT 100. Mr Arnott submits that the Tribunal could not be satisfied that there is virtually no risk to the public safety if Mr Webb 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.”
29 Mr Arnott referred to the views expressed in Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 with respect to the requirement in section 11(3)(a) of the Act that the Commissioner to determine the fitness and propriety of an applicant for a licence. This is done by having regard to the applicant's conduct and whether that conduct is such that the Commissioner can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace. Mr Arnott submits that a similar approach should be adopted in determining whether a licence should be reinstated.
30 Mr Arnott submitted that on the evidence the Tribunal could not be satisfied that there would be no risk to the pubic if Mr Webb were to have his licence reinstated. Further, it is not in the public interest for that to occur. Accordingly, he submits, the Tribunal should conclude that the Commissioner made the correct decision to revoke his licence.
Findings
31 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:
a) Mr Webb is 21 years of age. His category AB firearms licence was issued on 9 August 2001 for the genuine reason of Recreational Hunting/Vermin Control;
b) on 20 June 2003 Mr Webb was shooting rabbits on a rural property, in the company of Mr Nathan Tetley. Mr Tetley discharged a firearm, shooting himself through the left index finger. He required extensive surgery and ongoing treatment;
c) during an interview with Police on 21 June 2003 Mr Webb stated that the only firearm present on 20 June 2003 was Mr Webb’s registered firearm which Nathan Tetley had discharged, shooting himself;
d) Nathan Tetley told Police that he had hidden the unregistered firearm, minus the rifle bolt and ammunition clip, in bushland. He also advised Police that the firearm was stolen about two days after the incident on 20 June 2003;
e) on 22 August 2003 Mr Webb retracted his statement of 21 June 2003, advising Police that it was false. Mr Webb stated that he had made up the story because Nathan Tetley was unlicensed and the rifle involved in the shooting was unregistered. Nathan Tetley later confirmed these facts;
f) on 9 September 2003, Police attended Mr Webb’s premises to inspect his safekeeping arrangements. They found that Mr Webb’s security provisions did not comply with requirements. As a consequence Mr Webb’s firearms licence was suspended and his firearms were seized. Subsequently, on 7 January 2004, Police inspected and approved the safekeeping facilities;
g) on 20 October 2003 Mr Webb appeared before Queanbeyan Local Court on a charge of "False Representation Resulting in Police Investigation" where he was convicted and fined $500;
h) on 13 November 2003 Police stopped Mr Webb’s vehicle when Mr Webb failed to indicate at an intersection and his vehicle mounted the gutter. Mr Webb’s roadside breath test proved positive and he was arrested. Mr Webb became abusive and the assistance of other Police was required;
i) on 1 December 2003 Mr Webb appeared before Queanbeyan Local Court on a charge of "Drive with Middle Range PCA" where he was convicted and fined $300 and disqualified from driving for 6 months; and
j) Mr Webb has expressed regret over the circumstances of his convictions and supplied assurances that this behaviour is unlikely to re-occur.
32 The principal issue that I have to decide is whether there is a risk to the safety of the public if Mr Webb's licence is reinstated. In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration. In particular, the likelihood of risk to the safety of the public must be assessed by reference to Mr Webb's prior conduct. The conduct of concern is that which has lead to his convictions. It is appropriate that any exercise of discretion accord with the principles and objects of the Act.
33 I agree with Mr Webb's assertion that the 20 June 2003 incident did not occur due to any act or omission on his part. I accept that he was not aware that Mr Tetley was not a licensed shooter or that he was using an unregistered firearm. Nevertheless, as a licensed shooter Mr Webb should, as a matter of prudence, ensure that his shooting companions are also acting in compliance with the legislative requirements.
34 It is of particular concern that Mr Webb did not act responsibly after he became aware that Mr Tetley was not a licensed shooter and that he was using an unregistered firearm. His actions in fabricating the story he told police show gross immaturity and lack of responsibility. In my view this conduct is irreconcilable with the obligations imposed on the holder of a firearms licence. It reflects a casual attitude towards firearms that is out of step with the principles and objects of the Act. Mr Webb's conduct in relation to the second incident is equally dishonourable.
35 Mr Tetley’s actions were negligent to a degree that there is now a firearm on the streets and which is in the hands of the criminal element of the community. Mr Webb’s false representation to the police facilitated in the theft of the firearm in that police did not take action that they might have otherwise taken to secure the firearm.
36 Mr Webb has also breached certain provisions of the Act in relation to storage of firearms even though he was not convicted of those offences. This breach resulted in the suspension of his licence and the confiscation of his firearms on 9 September 2003.
37 Against these factors must be weighed the faith that Mr Webb’s father has in him, the evidence of his good character and the anomalous nature of this conduct. Mr Webb also has long history of firearms use that is incident free but which is overshadowed by these incidences of dishonourable conduct. While he has only held a firearms licence since 2001 the evidence is that he has been associated with firearms his whole life and has been conditioned with a respect for them and the need for safety.
38 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. Mr Webb has clearly taken steps to obtain a licence and to have his firearms registered. He also ultimately obtained appropriate storage for the firearms. On the evidence presented I accept it is probable that Mr Webb was aware of the statutory obligations but I doubt that he fully appreciated the importance of strict observance of those obligations until these incidents or that he was always diligent in ensuring that his firearms are stored in the prescribed manner.
39 I have weighed the evidence to decide whether there is a real and appreciable risk to the safety of the public if Mr Webb's licence is reinstated. The gravity of the events between June and November 2003 and the approach that Mr Webb had adopted makes this an extremely difficult task. Nevertheless, I have formed the view that Mr Webb’s appreciation of the importance of strict observance of his obligations as a firearms licensee has been strengthened by these incidents. Mr Webb has shown genuine remorse and I am satisfied that he is now a person who can be trusted to have access to firearms.
40 I am inclined to the view that it was proper for the Commissioner to suspend Mr Webb’s licence and to confiscate his firearms. However, in light of the evidence presented before me it is my view that there would be virtually no risk to the public if Mr Webb were to have his licence reinstated. Therefore the correct and preferable decision is to reinstate Mr Webb's firearms licence. Accordingly the Commissioner's decision should be set aside.
41 It seems to me that these events have proven to be momentous for Mr Webb. It is fortunate that the consequences were not even more severe. I note however that if I have wrongly assessed his character and he repeats conduct of this kind in the future, he should not expect the Commissioner to show any leniency.
Orders
42 The Commissioner's decision to revoke Mr Webb's Category AB firearms licence is set aside.
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