Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Antonios v Commissioner of Police [2021] NSWCATAD 20 Hearing dates: 6 November 2020 Date of orders: 2 February 2021 Decision date: 02 February 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery, Senior Member Decision: The decision under review is affirmed. Catchwords: ADMINISTRATIVE LAW –firearms licensing -- public interest Legislation Cited: Civil and Administrative Tribunal Act 2013 Administrative Decisions Review Act 1997 Firearms Act 1996 Cases Cited: Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16 Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63 Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145 Lee v Commissioner of Police, NSW Police Force [2020] NSWCATAD 144 Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 Category: Principal judgment Parties: Tony Antonios (Applicant) Commissioner of Police (Respondent) Representation: Solicitors: Yazbeck Law (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2020/00220172 Publication restriction: None Reasons for Decision Introduction 1. This is an application for review of a decision by a delegate of the Commissioner of Police ("the Commissioner") to revoke the category ABH firearms licence held by Tony Antonios ("the Applicant") under the Firearms Act 1996 ("the Act"). That decision was affirmed on internal review. Background 1. The Applicant was issued a Category AB firearms licence in September 2015 and a Category H firearms licence in October 2016. The Category AB firearms licence was issued for the genuine reasons of Sport/Target Shooting and Recreational Hunting/Vermin Control. The Category H firearms licence was issued for the genuine reasons of genuine reason of Sport/Target Shooting. The Applicant's licence was due to expire on 22 October 2020. 2. The licence was suspended in May 2019 as a result of an assault charge and related Apprehended Violence Order ("AVO"). 3. The Applicant defended the charge and the AVO successfully and both were dismissed. 4. In July 2020 the Commissioner's delegate decided to revoke the Applicant's licence. The Applicant sought an internal review which was unsuccessful. 5. The reasons provided in relation to the internal review decision identified a number of issues as relevant to the decision. Those included the allegation that the Applicant is not a NSW Resident; the Applicant's history of contraventions of legislation; and the public interest. The internal reviewer outlined a long history of incidents which had been brought to the attention of the police and also noted: That in the last five years you have been issued with 22 Traffic Infringement Notices (TIN) for various traffic related offences. In the last 10 years you have been issued with a total of 32 TIN, six of which were for exceeding the speed limit in a school zone; That records held by the Roads and Maritime Service (RMS) … indicate the following: That your NSW Driver Licence was surrendered on 6 March 2015; That your NSW Driver Licence was suspended on the following occasions: 2 February 2007 until 2 August 2007; 20 November 2007 until 20 February 2008; 2 July 2008 until 1 October 2008; 2 December 2009 until 1 March 2010; 22 September 2010, decision lifted on 9 October 2010; 28 July 2010, decision lifted on 5 August 2010; 13 November 2012, decision lifted 17 November 2012; 18 June 2013 until 17 September 2013; 7 November 2013, decision lifted 12 November 2013; 12 July 2014 until 11 January 2015; That your NSW Driver Privileges were withdrawn from 5 January 2016 to 4 April 2016 on the grounds that you were not a fit and proper person in view of your recorded offences. 1. The internal review reasons also identified that the Applicant was issued with a Victorian Driver Licence in March 2015 to expire in March 2029 and that he had to be a resident of Victoria to be eligible to hold a Victorian Driver Licence. 2. The internal reviewer concluded: I have formed the view that in the present case, the public would not want your licence reinstated, in circumstances where you have, over many years, disobeyed licensing requirements and laws relating to traffic safety. NCAT has held that "It is not in the public interest for a person to be licensed to possess and firearms, where the person does not have proper regard to laws and regulatory schemes which seek to ensure public safety. … I hold the view that the public needs to be confident that all persons who are granted the privilege of a firearms licence will consistently abide by the many obligations imposed by Parliament on such authorisations, in the interests of public safety. Therefore, it is considered inherent in the licensing requirements that persons who have access to firearms must act responsibly and in accordance with the legislation. … I am not satisfied that you will act responsibly and in accordance with the strict legislative requirements if your authorisation for firearms were to continue. ... Applicable legislation 1. Section 9 of the Administrative Decisions Review Act 1997 ("the ADR Act") provides that the Tribunal has jurisdiction in regard to an application for review of a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review. The Tribunal has jurisdiction in regard to a number of firearms licensing issues conferred on the Tribunal by section 75 of the Act. The Tribunal's jurisdiction includes review of decisions by the Commissioner of Police to revoke a licence. 2. The Tribunal's function in relation to applications before it is set out in section 63 of the ADR Act: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively 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 legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 1. The Act sets up a scheme to license people to possess and use firearms. One of the underlying principles of that Act 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. 2. Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation. The principles and objects of the Act confirm that possession and use of firearms is a privilege that is conditional on public safety. Section 3(1) provides: (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) ... 1. Additionally, section 3(2) provides that the Act's objects include: '(c) to require each person who possesses or uses a firearm under the authority of a license 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 supply of firearms' (e) to ensure that firearms are stored and conveyed in a safe and secure manner 1. Section 24(2)(a) of the Act provides that the Commissioner of Police may revoke a firearms licence "for any reason for which the licensee would be required to be refused a licence of the same kind". 2. Section 11(3)(d) of the Act provides that a licence must not be issued unless "the Commissioner is satisfied that the person to whom the licence is to be issued is a resident of this State or is about to become a resident of this State." 3. Section 24(2)(b)(ii) of the Act provides that a licence may be revoked 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. Section 24(2)(d) of the Act provides that a licence may be revoked for any other reason prescribed by the regulations. 4. Clause 20 of the Firearms Regulation 2017 ("the Regulation") provides that the " Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence." The Issues for determination 1. The issue in the present case is whether the correct and preferable decision is to affirm, vary or set aside the Commissioner's decision and, specifically, whether or not it is contrary to the public interest for the Applicant to hold a licence under the Act. 2. The standard of proof applying in these proceedings is the civil standard. That is, the balance of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party. 3. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at paragraph [23]. 4. The discretion must be exercised keeping in mind the activities which are authorised by a licence under the Act. Accordingly, the objects and purposes of the Act are relevant. The principal issue in determining public safety is whether or not there is a risk to the safety of the public if the Applicant's licence to possess firearms is returned to him. The Public Interest 1. The Tribunal has considered the concept of 'the public interest' in a number of decisions. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated in regard to a decision to refuse to issue a security industry licence: "25 The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise 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 that the public interest discretion 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 refusal." 1. The 'public interest' allows a consideration of issues going beyond the character of the Applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16. 2. An applicant's individual interest in retaining a firearms licence must be subordinate to the public interest in ensuring public safety: Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276. 3. The "Public interest' embraces standards acknowledged to be 'for the good order of society and for the wellbeing of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. The purpose of a reference in legislation to 'the public interest' is 'to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the decision-maker's consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at page 681. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals. 4. The principal issue in this matter is whether or not there is a risk to the safety of the public, including the Applicant, if the Applicant is permitted to possess firearms. It is not possible to predict with absolute certainty where the risk lies in any particular situation. The decision in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 is often cited in regard to the issue of risk. The Tribunal stated at paragraph [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. 1. However, 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 prior conduct: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at paragraph [32]. Prior conduct 1. Prior conduct can provide some guidance in regard to the question of whether there is in all the circumstances a real and appreciable risk to the public. However, it is impossible to say with certainty how any individual will behave in the future. 2. The Commissioner is concerned that the Applicant's extensive history of traffic infringements demonstrate a disregard for public safety and his own safety as well as a disregard for a regulatory scheme aimed at ensuring public safety. In Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145 Senior Member Scahill noted at paragraphs [75] - [76] that: The overriding principle of the Act is public safety. The Act confirms that firearm possession and use is a privilege conditional on public safety. The Applicant's traffic history shows a disregard for public safety and his own safety as he repeated traffic offences. 1. The Senior Member determined at [81] that: The Tribunal is satisfied, viewing the Applicant's conduct as a whole, that it is not in the public interest for the Applicant to hold a firearms licence. The Applicant's repeated breach of traffic laws and regulations aimed at ensuring public safety indicates a disregard for a regulatory scheme aimed at ensuring public safety. The firearms regulatory scheme, and licensing scheme, focuses primarily on public safety. ... 1. I formed a similar view in Lee v Commissioner of Police, NSW Police Force [2020] NSWCATAD 144 at paragraph [97] – [98]: 97 The traffic laws and regulations and the firearms regulatory scheme are both aimed at ensuring public safety. A disregard for a regulatory scheme aimed at ensuring public safety is a relevant consideration in regard to a determination of whether or not it is contrary to the public interest for the Applicant to hold a firearms licence. Given the extensive history of traffic infringements, I cannot be satisfied that similar conduct will not be repeated or that he may similarly disregard aspects of the firearms regulatory scheme. 98 In my view, more time would need to pass before I could be confident that the Applicant has demonstrated sufficient regard for public safety and his own safety, as well as sufficient regard for regulatory schemes aimed at ensuring public safety. Notwithstanding the Applicant's good character, given the seriousness of the Applicant's record and taking into account all relevant considerations, in my view it is not in the public interest for him to hold a firearms licence at this time. The material before the Tribunal 1. The Commissioner relies on a number of event records from its Computerised Operations Policing System ("COPS") - a centralised database containing all day-to-day operating information for police investigations. These records show the various incidents involving the Applicant that have come to the attention of the Commissioner. The Commissioner also relies on the Applicant's traffic record. Senior Constable Matthew Robinson attended the hearing, gave evidence and was cross-examined. The Commissioner has provided the Tribunal with video footage relating to an incident which occurred on 11 May 2019. It is alleged that the Applicant assaulted a person (Mr Gunther) who resided near a club named 'Sugar Rays' that was owned by the Applicant. The video footage also includes audio of conversations that took place in relation to the incident. 2. The Applicant relies on his own evidence. He provided two statements and also attended the hearing and was cross-examined. He also provided a number of character references which all indicate that he is held in high regard by the authors. 3. Each party also relies on written submissions. The Issues 1. The Commissioner has raised issues which, for convenience, it has classified into three categories. a. Licence history; b. Contraventions of the law; and c. Conduct of the Applicant 1. In these reasons I will adopt the same categorisation. Licence history 1. In addition to his firearms licence the Applicant has held a number of licences which are regulated by legislation in NSW. He has held licences related to his conduct of real estate, strata and car dealer businesses. Relevant to these proceedings he held a liquor licence in relation to a venue known as 'Sugar Ray's' in Surry Hills. He is now primarily focused on his finance business for which he is licensed. Residency 1. In relation to his firearms licence the Commissioner alleges that the Applicant failed to comply with the requirement that he must be a resident of NSW. At about the time of his firearms licence application he also sought a Victorian driver licence and that to be eligible for that licence he had to be a resident of Victoria. 2. In response to this allegation the Applicant stated: In late 2014/early 2015, I was considering a move to Melbourne to set up a second office for my finance business. I considered moving there for a few years to get it up and running. My sister Christina Antonios was an integral part of my business in Sydney and has recently become a partner in the business, I formed the view that I may be able to leave her to run the Sydney office and move my family to Melbourne for a few years to establish and develop a business there and eventually move back to Sydney. Making the decision to move to Melbourne was not an easy one and not one that I could make instantly. I felt like I needed to 'dip my toes in' and take it very slowly. I was uncertain and hesitant. Even though in around March 2015 I had decided to take steps to commence the move, months later it was still uncertain. Further, the move was slow and gradual because I was still working on my different businesses in Sydney. Between March 2015 and February 2020, I was moving in between Melbourne and Sydney. From recollection, I travelled between Sydney and Melbourne no less than 20 times over the 5-year period. My business in Sydney was growing and I was spending more time in Sydney. The business in Melbourne was not receiving the attention it deserved, in February 2020, I travelled to Sydney from Melbourne just before COVID-19 lockdowns, As a result of COVID-19,1 have not returned to Melbourne, the business has been completely destroyed and has failed. After months of deliberation, I recently made the decision that as soon as I can go back to Melbourne, without quarantine and other COV1D-19 concerns, I will dissolve whatever is left of the Melbourne business and move back to Sydney permanently. I deny any assertion that I was acting fraudulently in acquiring my Victorian Drivers Licence. I have surrendered my Victorian Drivers Licence and obtained a NSW Drivers Licence. ... 1. The Applicant's evidence was not altered by cross-examination. I am satisfied that he has provided a reasonable explanation in regard to the residency issue. Pistol and Shooting Club attendance 1. The Commissioner also alleges that the Applicant failed to comply with the requirement that he was to complete the required level of Pistol and Shooting Club attendance to fulfil his participation requirements in 2015 and 2018 and he did not complete any attendance requirements in 2016, 2017 and 2019. This issue was summarised in the Internal Review reasons as follows: [R]ecords held by the Parramatta Pistol & Shooting Club Inc. reveal that you became a member of that organisation on 20 January 2015 and that you held financial membership up to and including 2018. Club records indicate that you did not renew your membership in 2019. During the period that you held membership with that Club, you completed the required level of attendance to fulfil your participation requirements in 2015 and 2018. However, the Club's records indicate you did not complete any attendance or activity with that Club in 2016, 2017 and 2019; 1. The Applicant concedes that he did not record any attendances in 2016 and 2017 however he has provided evidence that he did attend recreational hunting trips in that period which were not recorded. He stated that he completed the required attendances to satisfy the requirements of the Act in 2018. In 2019, his Firearms Licence was suspended, and he could not complete the required attendances. 2. I am satisfied that the Applicant has provided a reasonable explanation in relation to this issue for the years 2018 and 2019. In the circumstances of this matter I do not consider that the failure to satisfy the requirements in the earlier years warrant further consideration. There are more significant issues relevant to the question of whether it is it is contrary to the public interest for the Applicant to hold a licence under the Act. Contraventions of the law Breaches of liquor licensing laws 1. In regard to the Applicant's liquor licence the Commissioner points to a business inspection that was conducted at 'Sugar Rays' on 2 November 2018. The Applicant was the owner and manager of the business and present at the time of the inspection. His evidence is that the bar had been open for about a week prior to the inspection. Police records indicate that 17 breaches of liquor licensing laws were identified and that a number of the breaches related to fire safety at the premises. The Applicant concedes the offences, however explains that it was his opening night and that he addressed each of the requirements after the Police intervened. 2. The Commissioner also alleges that the Applicant had breached the development approval in a number of respects including operating outside his approved operating hours while the licensing Police were present. This was in circumstance where there had been complaints regarding the use of the premises in the week prior to the licensing inspection. The Commissioner submits that this demonstrates that the Applicant shows little regard for compliance with the law. 3. In regard to these issues that Applicant stated: (a) I took over the bar in around October 2018. The inspection was on our opening night. ... (b) It was my first licenced venue business and it was not my primary focus. I have since sold the business to focus more on my finance business. (c) I assisted the NSW Police to inspect the whole premises. I sought their advice and assistance to ensure compliance and made promises to rectify all issues. (d) The NSW Police took no formal action in relation to the breaches and did not issue any fines. (e) All issues were immediately rectified by following the advice I obtained from the inspecting officers and later the following week, from the local council. (f) There were further inspections by NSW Police and there were no breaches. 1. The Applicant considered that the breaches were of a minor and technical nature. 2. In regard to the Commissioner's assertion that he was operating outside of his approved operating hours, the Applicant's evidence was that Police were on the premises undertaking an inspection at the time he was supposed to be closing and that he did not consider that it would be appropriate to close while they were there. 3. I agree with the Commissioner's submission that the Applicant's breaches of the licensing conditions indicate a lax attitude towards compliance with the legislative regime. In my view this is a significant consideration in regard to the question of whether it is it is contrary to the public interest for the Applicant to hold a licence under the Act. The Applicant's Conduct Interaction with Senior Constable Mathew Robinson 1. An entry in the COPS data base alleges that: On the 27th May 2019, the POI, ANTONIOS attended Redfern Police Station in the company of his Solicitor to view the footage in relation to the AOABH charge. During this interaction with SC ROBINSON, ANTONIOS has had a conversation with ROBINSON. During this conversation ANTONIOS made a reference to ROBINSON stating "You must be busy have you had a new baby?" ROBINSON said "Yes" but did not elaborate further. SC ROBINSON had ANTONIOS view the CCTV in relation to the Assault in the company of his Solicitor but no further comment made to ROBINSON in relation to his family. ANTONIOS and his Solicitor left the Police Station. SC ROBINSON has later raised the comments made by ANTONIOS and informed that he has not spoken to ANTONIOS about his family situation nor his young baby. SC ROBINSON has a Facebook account which he believed was private however was able to be accessed from the public accesses. Within his Facebook there is a picture of SC ROBINSON, his wife and new baby. SC ROBINSON believes the possible reason for the comment is that ANTONIOS had viewed the Facebook of ROBINSON after being charged and SC ROBINSON is listed as the Primary Informant. ROBINSON has submitted a report outlining the information supplied. 1. Senior Constable Robinson attended the hearing, gave evidence and was cross-examined. He maintained that the COPS entry was accurate with the exception that the words "in the company of his Solicitor". He said that this was a mistake and that he had raised it with his supervisor but the entry had not been corrected. 2. He said that while he didn't regard the Applicant's comments as a threat, he thought that it was odd that the Applicant knew about his family. 3. The Applicant denied making the statement attributed to him by Senior Constable Robinson. He stated: In relation to the allegation that I threatened Senior Constable Mathew Robinson, I have not been charged with any such offence and deny saying the words attributed to me or threatening him in any way. I am shocked by the allegation because SC Robinson and I were getting along fine; he was very nice to me and helped to facilitate the viewing of the CCTV footage. He treated me very well from the moment I was arrested. I had no reason to threaten him or his family. Being a father to an infant child myself, I would never make such a threat. In fact, my son was approximately 5 months old at that time. I am truly upset that such behaviour would be attributed to me. 1. In his evidence before the Tribunal the Applicant maintained this denial. He also maintained that he in fact attended Redfern Police Station in the company of his solicitor. 2. I note that the COPS entry was made on the same day on which the Applicant attended Redfern Police Station. However there is a conflict in regard to whether or not the Applicant attended in the company of his solicitor. 3. In the circumstances I accept that the Applicant probably attended Redfern Police Station in the company of his solicitor. However, I am satisfied that the Applicant probably said something to Senior Constable Robinson which he understood to be the comment that he attributed to the Applicant. However, this is by no means certain and for reasons that will become apparent, it is not necessary that I give more than minimal weight to the allegation. The Applicant's Traffic Record 1. The Commissioner points to the Applicant history of traffic offences, some of which have been repeated, and submits that this history shows a disregard for public safety as well as the regulatory scheme aimed at ensuring public safety. 2. The Commissioner's evidence supports the assertion, as set out in the section of the Internal Review reasons referred to above, regarding the Applicants extensive record of traffic related offences. 3. The Commissioner provided an updated traffic record which indicates that the Applicant also incurred penalties for traffic related offences in Victoria and that the pattern has continued. The Commissioner submits that the offences recorded in Victoria increase the number of traffic offences by 6 offences made up of 5 speeding offences including offences of 30 kilometres over the speed limit and one disobeying a major regulatory traffic control sign or police directing traffic. 4. The Commissioner also relies on COPS entries which report that the Applicant made comments to the Police who had issued penalty notices. These COPS entries, as summarised in the Internal review decision, alleged: That on 10 March 2017 police issued you with Traffic Infringement Notice (TIN) 4036637157 for the offence Driver use mobile phone when not permitted. Police records state that you told police, "You will never own a car like this, what do you earn two dollars an hour?"; That on 24 May 2017 police issued you with TIN 4038085334 for the offence Class A motor vehicle exceed speed limit >10 km/h - School Zone - Lidar. You told police "Who cares that's my hourly rate "; … That on 12 March 2018 police issued you with TIN 4044127331 for the offence Class A m/v exceed speed > 20km/h - Lidar. Police records state you said "Oh. C'mon it's a new car turbo it just glides "; 1. The Commissioner submits that in each of these incidents, the conduct could be described as disrespectful and offensive and demonstrates the Applicant's attitude with respect to traffic offences. They show a flagrant disregard for his legal obligations under the law and a disregard for public safety and the regulatory scheme aimed at ensuring public safety. 2. The Applicant concedes that his traffic record is bad and nothing to be proud of however he refutes the Commissioner's claims regarding the extent of the infringements. He contends that the Commissioner's records are inaccurate. He stated: In the past 5 years I have been issued with 9 traffic infringement notices (TIN), not 22. In the last 10 years I have been issued with a total 18 TIN's, not 32. Of those 18 TIN'S, 4 were for exceeding the speed limit in a school zone, not 6. 1. He further stated that he has been involved in multiple transport businesses which have required him to be on the road significantly more than the average road user. He stated: On 16 December 2011, I was issued with a HR drivers' licence. As previously noted, I drove a tow truck at night and on weekends for many years. I am currently involved in a trucking business in the construction industry, transporting excavation and demolition material from construction sites to tips. When we are short of drivers, I am forced to fill in. 1. The Applicant's solicitor made the following submission: The Applicant conceded that his driving history is bad but, cautiously, there are several mitigating factors to consider: (a) The evidence demonstrates that the Applicant has spent more time on the road than the average road user. (b) In 2015, when the Applicant was issued with his Firearms Licence: • he had 22 traffic offences on his record, including exceeding speed by more than 45km/h; • he had committed 3 traffic offences in school zones; • he has served 4 demerit point suspensions, 5 fine default suspensions and 1 Police suspension; • yet he was still considered a fit and proper person to hold a Firearms Licence. It is, with respect, ludicrous for the Senior Adjudicator to now seek to rely on this ground to justify the revocation of the Applicant's Firearms Licence. • The majority of offences in his driving record would sit at the lower end of the spectrum of seriousness. The Applicant's traffic record was available to the NSW Police when he applied for his Firearms Licence and it was issued to him. Between 2006 and being issued the Firearms Licence in April 2015, the Applicant had on average 2 infringements per year. In the period since April 2015, he has had on average 2 infringements per year. Importantly, in the past 3 years (going back to October 2017) he has only had 2 traffic offences. Whilst that is not a record to be proud of, there is a demonstrable change in his attitude towards traffic rules. This is particularly so considering the significant amount of time that the Applicant spends on the road. 1. I have considered the extent of the Applicant's traffic record and the COPS entries regarding comments that the Applicant is alleged to have made to officers issuing infringement notices. The Applicant has correctly conceded that his driving history is bad. I agree with the Commissioner's submission that if the comments are correctly recorded, they are disrespectful and offensive. In the circumstances I am satisfied that the Applicant probably made comments of the kind alleged. 2. I also agree with the Commissioner that these, along with the infringements, demonstrate the Applicant's attitude with respect to traffic offences and his attitude with respect to his legal obligations. This is a significant consideration in regard to the question of whether it is contrary to the public interest for the Applicant to hold a licence under the Act. I maintain this view even if the Applicant is correct in regard to the inaccuracy of the Commissioner's records. The alleged assault on Mr Gunther 1. The Commissioner alleges that on 11 May 2019, the Applicant assaulted Mr Gunther. Mr Gunther resided near 'Sugar Rays' and had made numerous complaints about the club. 2. On 12 May 2020 the Applicant was charged with assault and was also the subject of an Apprehended Violence Order as a result of that charge. At all material times, he denied guilt and maintained his innocence. He defended the charge and the AVO successfully, resulting in the dismissal of both the charge and AVO by the Local Court following a hearing. He gave sworn evidence in his defence. 3. Mr Zoppo, solicitor for the Commissioner has provided a summary of the events that lead to the assault charge. I am satisfied that Mr Zoppo's summary accurately reflects the evidence that was given in regard to the incident. 4. On the night of on 11 May 2019, Mr Gunther lodged a complaint about the fact that the Applicant had illegally parked his vehicle. The complaint led to the Applicant being issued a penalty notice for illegal parking. The Applicant was advised by a neighbour ("Peter") that Mr Gunther had lodged the complaint that led to the issuing of a penalty notice. 5. Mr Gunther alleged that the Applicant confronted him and struck him to the face causing him to fall backwards onto the pavement. The Applicant denied striking Mr Gunther. 6. The CCTV vision that was filed in the proceedings shows the Applicant running from Sugar Ray's to the end of the laneway after being advised by Peter that a penalty notice was to be issued on his vehicle. A few moments later Peter is shown as walking along the same stretch of laneway towards where the Applicant had walked. 7. At the end of the laneway, a conversation took place between Peter and the Applicant. That conversation is recorded. 8. Peter was heard to say to the Applicant: I was going to go down and get you because you told me you know ... so I was going to get you they were booking another guy on the other side of the road and I said (to the Council officer) "you get called out?" and he said "yeah" and the bloke was standing next to him. I said "I can go and get you'' and the other bloke, who was standing next to them (Mr Gunther), he said "no, no, no. He needs to get a ticket. He owns the bar" so he knew who you were". 1. The Applicant in response told Peter: "....this bloke he is calling the council every single day... (the Council) is giving me a hard time because of this bloke ". 1. It is not in dispute that the Applicant had parked his vehicle in a "No Stopping" zone. He told the Tribunal that he had not see the sign, that his vehicle was not blocking anything and that he made an assumption that he could park there. He said that the area was poorly lit at the time and that the lights were only switched on later. 2. The CCTV footage then shows the Applicant walking purposefully to the rear entry to Mr Gunther's property. The Applicant can be seen to reach over into Mr Gunther's back yard and to then run off immediately. Mr Gunter can be heard yelling out "Help, Help". 3. Mr Gunther can then be seen walking out of the back of his property and walking up the laneway speaking into a mobile phone. 4. Moments later Mr Gunther can be heard to say: "He punched me in the head .... he punched in the face and I fell backwards". 5. In evidence before the Tribunal, Senior Constable Robinson told the Tribunal that he observed that Mr Gunther had suffered some minor injuries consistent with the having been struck. 6. Video footage taken by a Police body worn video camera shows that the Applicant admitted that he owned the vehicle that was said to have been illegally parked. He also stated that he was not going to move the car because he had already been issued with a fine for parking in a "No Stopping" zone. 7. The Applicant told the Tribunal that he was concerned about the safety of the car and that he heard about a drunk guy walking around the car; he left the club to see what was happening; he didn't know who this guy was or anything about the guy that was running around the car; and that he wasn't angry when he approached the rear gate of the Mr Gunther's house. He only approached Mr Gunther as he wanted to understand why he made calls about his car. 8. This evidence is inconsistent with the conversations recorded in the footage that has been lodged in the proceedings. It is clear that the Applicant knew that Mr Gunther had complained about the parking of his vehicle and that he also know that Mr Gunther had made complaints about the operation of Sugar Ray's. 9. The Applicant also told the Tribunal that after he spoke to Mr Gunther and asked him whether he has called Council about the car being illegally parked, he saw Mr Gunther reached into his pocket. Thinking that Mr Gunther may have had a knife, he left without any further interaction with him. 10. In the body worn video footage, the Applicant told the Police that "every single week he is complaining. Let him say what he wants. Why would I punch him? He knows who I am". 11. The Commissioner contends that it would have been clear to the Applicant that Mr Gunther was complaining to the Police and the Council about the Applicant's parking and the loud noise from Sugar Ray's. The Commissioner further contends the Applicant approached Mr Gunther because he was upset that Mr Gunther had called and encouraged the issuing of a penalty notice for the Applicant parking his car in a "No Stopping" zone and he was fed up with Mr Gunther calling the authorities and complaining about the Applicant's conduct. 12. The Commissioner contends that the Applicant struck Mr Gunther with a single strike to the face in retaliation for the numerous calls Mr Gunther had made to the Council and the Police; or in an attempt to intimidate Mr Gunther, who resided near Sugar Ray's, in order to stop the constant calls to the authorities. 13. The body worn video footage also shows the Applicant with a colleague in front of Police. The Applicant identified that colleague as his father-in-law. The colleague suggested to the Applicant that he move his car from the "No Stopping" zone to a spot where it could be legally parked. In response to that suggestion the Applicant said, in the presence of the Police, that he would not move the vehicle as he had already received a fine. 14. The Commissioner submits that this comment supports the contention that the Applicant is not concerned with compliance with the law. Conclusion 1. I have watched the CCTV footage and the footage from body worn video Camera. In my view, it is probable that the Applicant struck Mr Gunther with a single strike to the face. The reason for the blow is not clear. It is likely that it was in retaliation for the numerous complaints that Mr Gunther had made in regard to the operation of Sugar Ray's. However, it may have been in frustration because of the fine he had received for parking his vehicle in a "No Stopping" zone or in an attempt to intimidate Mr Gunther. 2. The Applicant's reasons for striking Mr Gunther are not significant in the circumstances of this matter. 3. I am aware that the assault charge brought against the Applicant in relation to this incident was dismissed. However, that charge was dealt with at the criminal standard. In these proceedings the standard to be applied is the civil standard. That is, the balance of probabilities. I am satisfied that it is probable that the Applicant assaulted Mr Gunther. 4. In the circumstances I have given little weight to the character references which all indicate that the Applicant is held in high regard by the authors. 5. in my view, it follows that it is contrary to the public interest for the Applicant to hold a licence under the Act. 6. If I am wrong in relation to this issue, it is my view that the other conduct to which the Commissioner has referred shows clearly that the Applicant's attitude with respect to traffic offences and his attitude with respect to his legal obligations is such that there is cause for concern that he would not comply with his obligations under the Act if he were permitted to possess firearms. 7. The public interest requires that all licensees be aware of, and comply with, the legislative requirements. 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. The possibility that an applicant for a licence may not comply with the law is a relevant matter in exercising discretion to refuse a licence on public interest ground. 8. I agree with the views expressed by Senior Member Scahill in Keegan Jacques v Commissioner of Police referred to above. The views that I expressed in view in Lee v Commissioner of Police, NSW Police Force are equally applicable in the circumstances of this matter. 9. I am satisfied that it is likely that the Applicant would disregard aspects of the firearms regulatory scheme if he were permitted to hold a firearms licence. Accordingly, the decision by a delegate of the Commissioner of Police to revoke the Applicant's category ABH firearms licence should be affirmed. Order The decision under review is affirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 February 2021