Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Himo v Commissioner of Police [2021] NSWCATAD 321 Hearing dates: 14 October 2021 Date of orders: 2 November 2021 Decision date: 02 November 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: Naida Isenberg, Senior Member Decision: The decision under review is affirmed. Catchwords: LICENSING – firearms – fit and proper person – public interest – history of domestic violence - association with known criminal – lack of candour – traffic record – false and misleading statements – disregard for regulatory scheme Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Firearms Act 1996 Firearms Regulation 2017 Cases Cited: Aubrey v Commissioner of Police [2005] NSWADT 266 Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Barlow v Commissioner of Police, NSW Police Force [2003] NSWADT 254 Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240 Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 Cook v Commissioner of Police [2021] NSWCATAD 204 Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 Hook v Commissioner of Police [2020] NSWCATAD 250 Hunt v Commissioner of Police [2021] NCATAD 58 In Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127 Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145 Kogias v Commissioner of Police [2020] NSWCATAD 297 Leatham v Commissioner of Police [2021] NSWCATAD 121 Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 McDonald v Director General of Social Security (1984) 1FCR 353 at 357 Masterson v Commissioner of Police [2017] NSWCATAP 206 Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 Potts v Commissioner of Police, NSW Police Service [2010] NSWADT 311 Prevetera v Commissioner of Police [2021] NSWCATAD 133 Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 Tannous v Commissioner of Police [2011] NSWAT 116) Vella v The Commissioner of Police [2003] NSWADT 91 Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 Category: Principal judgment Parties: Jacob Himo (Applicant) Commissioner of Police (Respondent) Representation: Solicitors: Hartmann & Associates (Applicant) Maddocks Lawyers (Respondent) File Number(s): 2021/129792 Publication restriction: Pursuant to ss 64(1)(c) and (d) of the CAT Act, the transcript and recording of the confidential hearing, confidential exhibits, and the contents of all paragraphs in these reasons marked "[Not for publication]" are not to be published or released to the Applicant. REASONS FOR DECISION 1. The Applicant, Jacob Himo, was first issued with a Category H firearms licence in 1997, for the genuine reason of business as an armed security guard. He has held a firearms licence, of varying kinds, on and off, since that time. 2. Most recently, on 13 January 2020 the Applicant applied to have his firearms licence renewed, but his application was refused. That decision was affirmed on internal review. The Statement of Reasons prepared in the internal review recorded that the Applicant's application for a firearms licence had been refused on the basis that he was considered to not be a fit and proper person who could be trusted to have possession of firearms without danger to public safety or to the peace. It was also determined that it was not in the public interest that he hold a firearms licence. 3. On 10 May 2021, the Applicant sought review of the decision by this Tribunal. The legislative framework 1. The principles and objects of the Firearms Act 1996 (the Act) are set out in s 3 of the Act, relevantly: 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 ... (2) The objects of this Act are as follows: ... (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms 1. The Act, in setting out restrictions on the issue of licences, provides, relevantly: 11 General restrictions on issue of licences ... (3) A licence must not be issued unless: (a) the Commissioner is satisfied that the Applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace. ... (7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest. 1. Section 70 of the Act imposes severe penalties on a person who, in connection with an application for a firearms licence, makes a statement or provides information that the person knows is false or misleading in a material particular. Tribunal's approach 1. At the outset of the hearing there was an issue in relation to the service of the Respondent's submissions and supplementary s 58 documents. The matter was adjourned so that these could be re-sent to the Applicant's solicitor. An adjournment was discussed, but the Applicant's solicitor elected to proceed nonetheless, after being given the opportunity to review the material. On resumption, the Applicant's solicitor was critical of the Respondent's change in relation to the matters it relied on in support of its contention that the Applicant is not a fit and proper person to hold a firearms licence and that it is not in the public interest that he hold such a licence, and submitted that it was procedurally unfair that the basis for the Respondent's refusal to grant the licence had changed. As was pointed out by the Respondent's representative, the internal review had relied on the same basis for the refusal. 2. Section 63 of the Administrative Decisions Review Act 1997 (ADR Act) provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that the Tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28] -[34]. Evidence 1. In support of his Application for Review the Applicant provided a statement dated 16 August 2021. He also provided: 1. A statement by his parents, Boulos and Josephine Himo, dated 21 April 2021 2. A statement from a property owner, Amanda Collins, dated 26 April 2021 regarding the Applicant's past shooting operations 3. An undated statement by John Monti 1. The Applicant gave evidence and was cross examined. 2. In addition to the documents filed under s 58 of the ADR Act (including supplementary documents) the Respondent also relied on the confidential evidence of Senior Constable Bradley Duke. Applicant's firearms history 1. The Applicant has had a chequered firearms history. On 28 November 1997, he was initially issued with a Category H firearms licence for the genuine reason of business as an armed security guard. That licence expired in January 2003. 2. In April 2003 the Applicant was granted a Category AB firearms licence for the genuine reason of recreational hunting/vermin control, and in January 2004, a Category H firearms licence was granted for the genuine reason of an armed security guard. 3. In February 2004, Police suspended the Applicant's firearms licence due to allegations that he was suffering from post-traumatic stress with lack of concentration following the breakdown of his marriage, in addition to concerns expressed to Police by family members regarding his mental health. The Applicant was asked to provide a medical assessment and, on 15 March 2004, he provided a report by consultant psychiatrist, Dr Selwyn Smith which led to the suspension being lifted on 1 April 2004. 4. On 20 May 2004, the Applicant's firearms licence was again suspended following an Interim Apprehended Violence Order (IAVO) being imposed on him. When the IAVO was withdrawn, the suspension was lifted. When the Applicant no longer met the requirements for a security licence, his Category H licence was revoked. 5. In October 2005, the Applicant lodged a fresh application for a Category H firearms licence which was issued on 9 February 2006. Following an incident on 1 May 2006, where the Applicant was scheduled for treatment under the Mental Health Act due to concerns for his psychological welfare, Police seized the Applicant's registered firearm in addition to the firearms registered to the Applicant's father which were also stored at the premises. On 18 July 2006, the Applicant's Category ABH firearms licence was revoked. The reasons provided were that it was not in the public interest for the Applicant to continue to hold his licence due to the AVO and information that the Applicant had been scheduled at Manly Hospital due to emotional distress. 6. In March 2007, the Applicant lodged an application for a Category AB firearms licence for the genuine reason of recreational hunting/vermin control. His application was refused due to concerns about his psychological health and due to domestic violence issues. Internal review was sought and, notwithstanding the Applicant provided a report from Consultant Psychologist, Roger Peters, dated 8 November 2007, the decision under review was affirmed. The Applicant sought review by the predecessor of this Tribunal and, on 5 May 2008, the refusal decision was set aside, and, as a result, the Applicant's Category AB firearms licence was issued to expire on 17 July 2013. 7. In November 2010, Police again suspended the Applicant's Category AB firearms licence and seized the Applicant's five firearms. It was contended that he had allowed his (unlicensed) sons access to his firearms. On 21 February 2011, the Applicant's Category AB firearms licence was revoked. Additionally, the Applicant had recent domestic violence matters, including being charged with the offence of Contravene prohibition/restriction in AVO (Domestic), although the charge, while proven, was dismissed without conviction. 8. In December 2011, the Applicant lodged a fresh application for a Category AB firearms licence for the genuine reasons of recreational hunting/vermin control, but on 14 February 2012, his application was refused. The decision was affirmed on internal review on the grounds that: 1. the Applicant contravened provisions of the Act by allowing unauthorised persons to access his firearms; 2. his traffic record clearly demonstrated that the Applicant does not always give proper regard to the law; 3. his history of confrontations and allegations of violence; and 4. the offence of Contravene prohibition/restriction (domestic) was proven against the Applicant. 1. On 11 March 2014, the Applicant lodged an application for a Category AB firearms licence for the genuine reason of recreational hunting/vermin control but the application was refused due to "ongoing domestic circumstances". 2. On 15 July 2014, the Applicant lodged an application for a Category ABH firearms licence citing the genuine reasons of recreational hunting/vermin control and business or employment as an armed security guard. The application was refused on public interest grounds due to the Applicant's history of domestic violence, his continued display of intimidating and aggressive behaviour, his criminal history, his inability to personally exercise continuous and responsible control over firearms, and the insufficient genuine reason to support his application for a Category H firearms licence. The Applicant sought internal review, although did not press his request for a Category H licence. The Applicant supplied character references and, on 2 December 2014, the decision was set aside. At that time weight was given to the lapse of time that the Applicant had come to adverse attention for threatening conduct toward his family members, with substantial weight being assigned to a letter of support received from his parents. Although concerns were held regarding the Applicant giving unauthorised access of his firearms to his children, the reviewer expected that the Applicant would behave differently in the future. In setting aside the refusal decision the reviewer stated: Despite this decision please ensure that [the Applicant] fully understands that any information which raises concerns regarding his safe possession of firearms will be considered seriously, if he comes to adverse notice in the future, the revocation of his firearms licence will be considered. 1. On 9 February 2015, the Applicant made an application to add a Category H licence to his existing Category AB licence for the genuine reason of business/employment as an armed security guard and on 8 April 2015, the Applicant was issued a Category H firearms licence. On 25 February 2016, the Applicant's Category H firearms licence was revoked as the Applicant could no longer establish his genuine reason as an armed security guard. 2. On 13 January 2020, the Applicant lodged his reapplication for a Category AB firearms licence. On 21 January 2020, a request was made for a doctor's assessment, to determine whether or not the Applicant's access to firearms could be impaired because of a physical disability or other health related issue, given that he was in receipt of the disability support pension. On the same day an email was sent requesting that the Applicant provide evidence of his genuine reason for recreational hunting/vermin control. On 4 February 2020, the Applicant provided a letter of authority in support of his genuine reason for recreational hunting/vermin control. The Applicant also provided a letter from a General Practitioner, Dr Mark Green, dated 31 January 2020 which stated that he had known the Applicant for one month and could confirm that there is no physical or mental reason why the Applicant was not fit to hold a licence. That letter stated that the Applicant's disability relates to severe low back pain which is managed with analgesia and that this would not affect his ability to handle a firearm. 3. On 7 February 2020 (shortly prior to the date that licence was due to expire), the Applicant's Category AB firearms licence was suspended on the basis that it was not in the public interest for him to hold a firearms licence, as Police had concerns regarding the criminal history of a person residing at the Applicant's house. On 21 February 2020, a decision was made to refuse the Applicant's Category AB firearms licence application on the grounds that allowing a person with extensive criminal history to reside with him, coupled with the Applicant's alleged awareness of this criminal history, raised concerns regarding the Applicant's continued access to firearms and the direct risk to public safety. 4. The Applicant submitted an internal review request regarding the suspension and seizure of his Category AB firearms licence, which the Respondent accepted as a request for review of the refusal decision. On 18 March 2021, the Respondent undertook an internal review and affirmed the decision to refuse the Applicant's Category AB firearms licence application on the grounds that the Applicant is not a fit and proper person and it is contrary to the public interest for the Applicant to have a firearms licence. This is now the matter before the Tribunal. Consideration 1. The Respondent submitted that the Applicant is not a fit and proper person and cannot be trusted to have possession of firearms without danger to public safety or to the peace, and relied, in particular that: 1. the Applicant has come to Police attention on a number of occasions regarding incidents of domestic disputes and domestic violence; 2. concerns remain regarding the Applicant's association with persons who have extensive criminal histories Domestic disputes and the Applicant's mental health 1. From February 2004, Police had to intervene in domestic disputes between the Applicant and his ex-wife. Police were also concerned as to the Applicant's mental health. On 1 May 2004, the Applicant became subject to an lAVO listing the Applicant's ex-wife and two children as the persons who required protection from the Applicant, although the IAVO was subsequently withdrawn. During 2005-2006, numerous reports were received by Police regarding the Applicant's abusive conduct toward others and concerns were expressed for his psychological well-being. The reports contain allegations of threats by the Applicant toward family members and possessive behaviour. In May 2006 the Applicant was scheduled for treatment under the Mental Health Act due to concerns for his psychological welfare. Later in 2006, allegations were made that the Applicant had made telephone threats to kill his brother-in-law, although the Applicant denied making any such calls. In October 2006, further allegations were made to Police of threats made by the Applicant toward his family. The Applicant was made subject to an lAVO for the protection of members of his family, but the lAVO was revoked. 2. In March, May and November 2009, concerns were again raised with Police regarding the Applicant's psychological wellbeing and his behaviour towards his family. 3. In January 2011, reports were made to Police that the Applicant was verbally abusing his mother, and smashing items at their house. Due to fears held for the safety of his parents due to their age and vulnerability, an lAVO was applied for. Later, the Applicant was charged with Contravene prohibition/restriction in AVO (Domestic) which was found proven but no conviction was recorded under s 10 of the Crimes (Sentencing Procedures) Act 1999. On 27 January 2011, the lAVO issued against the Applicant for the protection of his parents was revoked. 4. On 25 March 2011, the Applicant was made subject to a confirmed AVO, listing the Applicant's sister and his brother-in-law as the persons requiring protection from him. However, on 4 August 2011, the AVO was revoked. 5. In his evidence the Applicant said that he now has a good relationship with his parents, with whom he now lives, and that they "get on well". The letter from the Applicant's parents states that they have had "no incidents or any problems with [the Applicant] for the past 8-10 years…" and this appears consistent with the information available to the Police in that there have been no reports to the contrary. 6. On 11 April 2013, allegations of abusive and possessive behaviour by the Applicant toward a female were reported to Police. As a result, on 24 April 2013, Police initiated a Provisional AVO against the Applicant and an lAVO was issued for the protection of the female, but on 28 June 2013 the lAVO was revoked without the allegations being tested. These allegations are now 7 years ago. The contention is afforded little weight. 7. Further, when the Applicant sought to renew his licence in March 2014, his licence was ultimately issued, notwithstanding the foregoing information being available. Specifically, weight was given to the lapse of time that the Applicant had come to adverse attention for threatening conduct toward his family members, and notwithstanding concerns that the Applicant had given unauthorised access of his firearms to his children. 8. The Respondent also referred to complaints by the Applicant's former wife in December 2015 that the Applicant was excessively contacting her. She informed Police that after sending an occasional text message, the Applicant began sending her several messages a day and she wished for him to stop. When spoken to by Police, the Applicant said that he was still in love with his ex-wife and that from that point onwards, he would only make contact a few times a week. There has been no further complaint. Since that time the Applicant has not come to Police attention in relation to domestic issues at all. 9. The Respondent was critical of Dr Mark Green's report of 31 January 2020. Dr Green wrote that he had only known the Applicant for one month before his report, and the Respondent submitted, his letter does not address the psychological difficulties experienced as a result of the Applicant's relationship breakdown, any possibility of relapse breakdown of relationship, previous history, and why there was no current concern. It was suggested his assessment was not based on a complete presentation of facts and he was not informed of the magnitude of the family disputes or the length of period of time that these disputes had occurred. Presumably the background information was primarily provided by the Applicant. 10. The Tribunal has determined that an expert medical opinion should be given no weight where it fails to contain sufficient details and reasoning to support the opinion expressed, fails to provide the criteria applied to reach any conclusions; and fails to outline the history taken and understanding of the facts applied to the criteria in order to reach the opinion: Potts v Commissioner of Police, NSW Police Service [2010] NSWADT 311 at [44]-[51]. 11. However, in refusing the Applicant's present application no issue was raised in relation to his mental health, nor were issues raised about perceived inadequacies of Dr Green's report in the internal review. While it is open to the Respondent to now raise this concern, there was no evidence whatever that the Applicant continues to suffer from mental health issues. 12. In summary, the Applicant's poor behaviour, whether because of mental health issues, or otherwise, appears to be behind him, he not having come to attention at all since 2013, or at worst, 2015 if his wife's complaint is taken into account. Association with persons who have extensive criminal histories 1. On 18 December 2019, Police conducted a safe storage inspection at the Applicant's home. In the body worn camera footage a man was viewed in the lounge area "near where the firearms safe storage facilities were located". The man was later identified as Samuel Monti (Sam). I observe that the COPS Event records that the safe is located in a wardrobe and it is unknown if this was in fact near the lounge area. 2. On 7 February 2020, Police attended the Applicant's home and suspended his firearms licence and seized his firearms on the grounds of public interest due to his domestic circumstances, as Sam, who had been charged with firearms offences, had an extensive criminal history and an apparent disregard for authority, was residing with the Applicant. The Applicant told Police that he is a life-long friend of Sam's father, John, and that he was allowing Sam to reside with him as a favour to his friend; he said he had known Sam all his life. He reportedly said he was aware "to some degree" of Sam's criminal history. Police explained to the Applicant that although his safe storage facilities complied with legislation, the fact that Sam was residing where firearms were stored raised serious concerns for public safety. Attending Police reported that the Applicant appeared to understand their concerns. 3. That afternoon, Police reported that they received two phone calls from the Applicant indicating that he did not understand the reasons for the suspension of his firearms licence. While speaking to Sergeant Orrock, it was then noted that the Applicant was "fully aware" of Sam's criminal history, in that the Applicant, disclosed his understanding that Sam had been in gaol for drugs, ammunition and other offences, was under the supervision of Probation and Parole (P&P) [Community Corrections] and had only been out of gaol for approximately 3 months. Police reported that the Applicant was also aware that Sam was attending rehabilitation appointments for a methamphetamine addiction and had attended twice in the past week. The Applicant reportedly told Police that Sam was only staying there "overnight", although the Applicant denied in his evidence that he had said that, adding that he had said Sam was only staying there "temporarily". When Police questioned the Applicant regarding whether he considered the risks of Sam residing at his home, the Applicant stated that he "just wanted to help his friend" and that he "had complied with the safe storage". 4. Police were concerned that the Applicant seemed to have no issue that a person with criminal convictions, and who had served a custodial sentence was residing with him when firearms were being kept at the premises. It was recorded that the Applicant did not "at all" comprehend the risks associated with having firearms stored in the home while Sam resided there. 5. When Sam's P&P officers were contacted by Police, they said that they had spoken to the Applicant during their visits to his home and he did not disclose that firearms were being kept at his residence. The P&P officers had said that, had they been aware of firearms at the address, Sam would not have been permitted to reside there. The Applicant stated that he was not asked whether there were firearms on the premises. It was submitted on the Applicant's behalf that, as Sam was not a prescribed person under s 44A of the Act, there is no statutory obligation on the Applicant to address that issue. Police considered that the Applicant had deliberately withheld that information from the P&P officers, but there was no evidence in support of that contention. 6. In his application for internal review the Applicant wrote that he was aware that Sam "had some issues with the Police", however he was under the impression that the matters were related to drink driving offences for which Sam had spent some time incarcerated. It was not until when his firearms were seized that he realised the extent of Sam's criminal history. The Applicant stated that during a meeting with Sam's parole officer, he "questioned the parole officer about Sam's offences" and that he was "advised by the parole officer that [he] could not be provided with any specific information due to privacy laws." 7. The Applicant's evidence was that Sam had been living with his father, John, in Parkes, and Mr Monti had asked him if Sam would stay with him while undergoing rehabilitation to get back on his feet. He said he did not know Sam's full history and only had him stay as a favour to his friend. Sam no longer resides with the Applicant, as evidenced from the letter of John Monti. 8. It was submitted that the Applicant knew Sam was not a violent person and had no convictions for offences for violence. This submission was inconsistent with the Applicant's position that he did not know the full extent of Sam's criminal history when he took him in. Indeed, given the extent of the history, it is unlikely that the Applicant would be familiar with the detail. 9. [Not for publication] 10. [Not for publication] 11. The Applicant said that John Monti only told him after Police had seized his firearms that Sam had received death threats. 12. The Respondent's concerns relate to the Applicant's association with Sam; there was no evidence of other criminal associations. The Applicant told Police from the outset that he is a life-long friend of Sam's father, John, and that he was allowing Sam, whom he had known all his life, to reside with him as a favour to his friend. At first, in February 2020, he told attending Police that he was aware, "to some degree" of Sam's criminal history. In cross examination he said that, at the time he agreed to take Sam in, he knew he had been in gaol for drug-related offences and that he was "on ice". The Applicant reportedly told Police that he was "fully aware" of Sam's criminal history – that he had been in gaol for drugs, ammunition and other offences, was under the supervision of P&P, had only been out of gaol for approximately 3 months, and was attending rehabilitation appointments for a methamphetamine addiction. The Applicant denied telling Police in the same conversation that Sam was only staying there overnight. On the documented account of the rest of the conversation, such a statement was clearly inaccurate, given the level of detail about which the Applicant had already told Police about Sam. I accept his explanation that he had said Sam was staying with him "temporarily". 13. The Applicant said that Sam had been living with his father, John, in Parkes. Mr Monti asked him if Sam would stay with him while undergoing rehabilitation to get back on his feet. He said he did not know Sam's full history and only had him stay as a favour to his friend. Sam Monti no longer resides with the Applicant, as evidenced from the letter of John Monti. 14. The Respondent's concerns relate to the Applicant's association with Sam. There was no evidence of other criminal associations. 15. It was submitted on the Applicant's behalf that, if the Respondent believed that the presence of Sam was an issue at the time he was first seen at the Applicant's premises, immediate action should have been taken, not nearly 3 months later when the Applicant's firearms were seized. In that regard, there was no evidence as to when the man that had been seen at the Applicant's home on a routine check was identified as Sam, so it is unknown if Police in fact delayed in taking action. Conclusion in relation whether the Applicant is a "fit and proper person" to hold a firearms licence 1. Section 11(4) of the Act shows the emphasis that has been placed in considering what constitutes a "fit and proper person". It is a pillar of the Act, where a person's sense of judgment, responsibility and self-control can be compromised, whether the public's safety is put at risk. 2. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, Toohey and Gaudron JJ said at 380: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of " fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, 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. The 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. 1. A person's fitness is to be considered in the light of the activities that the person will undertake: see In Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127 at 156-7, Re Percival and Australian Securities Commission [1993] AATA 196; (1993) 30 ALD 280, at 290, Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALD 794, at [41]. In the context of firearms licensing, Higgins JM, in Barlow v Commissioner of Police, NSW Police Force [2003] NSWADT 254 at [22], stated that it should be considered whether the person's conduct is such that the applicant can be trusted to have possession of firearms without presenting a danger to the public safety or peace. 2. The Applicant has no criminal record. In the past he has engaged in poor conduct which has brought him to the attention of Police on a number of occasions and which has resulted in several IAVOs being issued against him. As far as I could see, all had been revoked. As I have observed, that conduct is now some years ago. More recently the Applicant has come to Police attention because of his association with Sam, a person with significant criminal history, however, I have accepted that the association came about as a favour to his friend. 3. I find that the Applicant is a fit and proper person to be issued with a firearms licence. Public interest 1. The Respondent also contended that it is not in the public interest for the Applicant to hold a firearms licence. In addition to the matters raised above, it was contended: 1. the Applicant failed to demonstrate candour in dealings with Police; 2. the Applicant provided false and misleading information on licence applications on numerous occasions; 3. the Applicant demonstrated a failure to comply with firearms legislative requirements; 4. 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 1. The expression "public interest" is not defined in s 11(7), nor elsewhere in the Act, and a decision in relation to the public interest in this context is particularly informed by the underlying principles and objects of the Act and the strict controls under the Act in relation to licensing. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the "public interest" is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in deciding whether to exercise a discretion adversely to an individual. Public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24]. 2. In the oft-cited decision of Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) at [28], Hennessy DP said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Since Ward, Hennessy DP has cautioned against applying that language in a mechanistic way: see AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 (AML) at [7]. The question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near absolute negative, but, in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, but with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] – [66]. 3. The principle in Ward is to the effect that the licensing regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum: see also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36]. 4. The Tribunal is required to look at the Applicant's conduct as a whole, including potential future conduct. The Tribunal must consider the past conduct of the Applicant as a significant guide in assessing likely future conduct: see for example, Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141]. 5. Lack of candour in dealings with Police 6. Although I have found that the Applicant's mental health concerns appear to be resolved, I observe that the Applicant has never disclosed in his applications for firearms licences that he has been referred to or treated for any mental health issues. This, the Respondent submitted, demonstrated the Applicant's lack of candour on his licence applications, and resulted in previous applications being unable to be properly assessed. 7. I observe that in March 2007, the Applicant lodged an application for a Category AB firearms licence. The application form for a firearms licence contained the following question, to which the Applicant answered "no": Have you in NSW or elsewhere: Attempted suicide or self-harm, been referred or treated for alcoholism, drug dependence, or a mental or nervous disorder or illness? 1. Clearly, the Applicant, in having been scheduled under the Mental Health Act in May 2006, the appropriate response was "yes". His mental health issues were known to Police only because of the numerous complaints that had been made about him. His application was refused in the first instance due to concerns about his psychological health and due to domestic violence issues: 2004 (3 reports) and in 2006 (5 reports). 2. I find that the Applicant was not forthcoming in relation to his mental health in the 2007 application. 3. More recent versions of the question, including in the application the subject of this review, the question in relation to referral or treatment for mental health issues is limited to the 12 months prior to the date of application. No error has occurred in these versions. 4. The Respondent also contended that the Applicant had not been candid with Police in relation to his knowledge of Sam's history, giving conflicting accounts as to his awareness of his criminal history. While I cannot be satisfied that the Applicant set out to deceive Police, his evolving account of his understanding, suggests, at best, some naivety in taking in his friend's son, who he knew, from the outset to have been in gaol, was subject to P&P and was undertaking rehabilitation. False and misleading information on licence applications 1. As discussed above, the Applicant has applied for a firearms licence on several occasions since his licence was first issued in 1997. 2. On 7 December 2011 and 11 March 2014, when the Applicant lodged fresh applications for a Category AB firearms licence he initially answered 'Yes', then crossed out and answered 'No' against the question: Have you in NSW or elsewhere: Within the last 10 years been the subject of a Family Law or Domestic Violence Order and/or Apprehended Violence Order (other than an order which was revoked?) my emphasis 1. Even though the Applicant had been charged with the offence of Contravene prohibition/restriction in AVO (Domestic) in January 2011 that AVO was subsequently revoked. Technically, therefore, the Applicant was not required to disclose that he had been subject to AVOs, because all had been revoked by the date of the applications. 2. On 9 February 2015, the Applicant made an application to add a Category H licence to his existing Category AB firearms licence. There he answered 'No' to the personal history question: Have you in NSW or elsewhere...been refused or prohibited from holding a firearms licence or permit or had a firearms licence or permit suspended, cancelled or revoked? 1. The Applicant also signed the declaration stating: I understand that it is a serious offence under the Firearms Act 1996 to make a statement or provide information that I know is false or misleading and I certify that all the Information contained in this application is true and correct in every detail. 1. His answer was clearly incorrect, as in February and May 2004 and in November 2010, his firearms licence had been suspended. Furthermore, and more significantly, in 2004 his licence was revoked, as it was in 2006 and 2011. 2. On 13 January 2020, when the Applicant lodged his reapplication for a Category AB firearms licence, the application which is the subject of this review. In that application he answered 'No' to the personal history question: Have you in NSW or elsewhere ... been refused or prohibited from holding a firearms licence or permit or had a firearms licence or permit suspended, cancelled or revoked? 1. The Applicant also checked the box confirming that all statements in the declaration were true and correct. Those statements included the following: I understand that it is a serious offence under the Firearms Act 1996 to make a statement or provide information that I know is false or misleading and I certify that all the information contained in this application is true and correct in every detail. I certify that I can satisfy the legislative requirements and produce evidence of my genuine reasons as specified within this application. (For example, club membership to support Sport/Target shooting.) 1. The information was incorrect as, in addition to the suspensions/revocations referred to above, on 25 February 2016, the Applicant's Category H firearms licence had been revoked as he could no longer establish his genuine reason as an armed security guard. 2. The Applicant, in his statement, said that in answering the questions, he had "made a mistake". He said he had a valid firearms licence at the time and was under the assumption that it was not cancelled or revoked, and that he had every right to it. In cross examination he said the question was "a bit deceiving", and "confusing", because he "got [his] licence back". He pointed out his struggle to correctly answer questions in relation to AVOs in that he originally answered "yes" which he changed to "no". In his evidence he said that his former solicitor had advised him in relation to AVOs which had been revoked. He said he left school early and had struggled with reading all is life. 3. Section 70 of the Act provides: 70. A person must not, in or in connection with an application under this Act or the regulations, make a statement or provide information that the person knows is false or misleading in a material particular. Maximum penalty: imprisonment for 14 years if the application relates to a pistol or prohibited firearm, or imprisonment for 5 years in any other case. 1. If the Applicant had knowingly provided false or misleading information in the application he would be liable to severe penalty, and, on that basis alone, it would be unlikely that it would be in the public interest that a person who knowingly provided false or misleading information, should hold a firearms licence: see Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240, and more recently, Cook v Commissioner of Police [2021] NSWCATAD 204 (Cook). 2. As I said recently in Leatham v Commissioner of Police [2021] NSWCATAD 121 at [18] one of the objectives of the Act is the functioning of a proper system of firearms licensing, which necessarily depends on applicants providing true and correct information in a comprehensible manner. In Kogias v Commissioner of Police [2020] NSWCATAD 297 the applicant, who had failed to disclose that he had previously had his licence revoked, said that his incorrect statements in the application were errors and were not intentional. Nonetheless the Tribunal in that matter took the view that the applicant knew the form he had completed was incorrect. Similarly, in Hunt v Commissioner of Police [2021] NCATAD 58 the Tribunal found the applicant was aware that he had incorrectly completed the form in relation to a suicide attempt within the preceding 10 years. 3. The Applicant's solicitor referred me to Cook, where I said at [40]: 40. In Hook v Commissioner of Police [2020] NSWCATAD 250 the applicant had responded "no" to a question whether in the past 10 years he had been the subject of an AVO and had explained that he had thought the question was asking about current AVOs and that he must have misread the question. Professor Walker SM considered, at [96], that the applicant's explanations were less than impressive and at best suggested a degree of carelessness in completing an official document and that the meaning of the question was clear enough if he had taken the trouble to read it properly. The Senior Member found the applicant in that matter to be, essentially, unsophisticated, and probably had not been involved much legal form-filling. His incorrect answers resulted from a combination of carelessness and inexperience and were not knowingly false or misleading within the meaning of s 70. The Senior Member also contrasted the matter to Constantin v Commissioner of Police, New South Wales Police Force, [2012] NSWADT 172 (Constantin), where the applicant had knowingly concealed a Queensland conviction for armed robbery. 1. It was submitted on the Applicant's behalf that Cook is particularly relevant here, as the Applicant is not well educated, and has not been subject to a great deal of form filling. While the Applicant may not be particularly well educated, I do not agree that has not had much experience in filling out forms. He has applied for a firearms licence on multiple occasions. He has also, it appears, applied for a security licence on multiple occasions. It is difficult to conclude that the Applicant did not knowingly intend to provide false information; the Applicant's licence had been suspended and revoked a number of times. 2. I also do not accept, as was submitted on his behalf, that this was a "technical issue" in relation to his answers about revocations. It was submitted that although there had been several revocations in the past, these had been overturned on review. That submission was not entirely accurate as some of the revocation decisions were not subject to review, or those decisions were not overturned on review. 3. I discuss below the Applicant's driving history, and make observations there about the Applicant's purported explanations about his record, which I found to be disingenuous. failure to comply with firearms legislative requirements; 1. The public interest requires that all licensees be aware of and comply with the legislative requirements: Vella v The Commissioner of Police [2003] NSWADT 91 at [41]. The Respondent submitted that the Applicant had failed to comply with legislative requirements, and relied on the following: 1. on 4 February 2004, Police conducted a search of the Applicant's premises where Police located unsafely stored ammunition in different locations; and 2. on 4 November 2010, information was received that the Applicant had allowed his sons unauthorised access to firearms contrary to s 39(1)(c) of the Act (which prescribes that a person who possess a firearm must take all reasonable precautions to ensure that it does not come into the possession of a person who is not authorised to possess the firearm). 1. I observe that the Applicant had been issued with a firearms licence in April 2004, only 2 months after he had failed to meet the safe storage requirements in February 2004. Similarly, the Applicant was issued with a licence in February 2006 and May 2008, notwithstanding the earlier transgression. Further, the Applicant was granted a licence in December 2014 and 2015, again, notwithstanding the earlier wrongdoing, and despite the additional safety compliance issue in November 2010. In any event, these contraventions are now 17 and 10 years ago respectively, and I afford them little weight. 2. More recently though, the Respondent submitted, the Applicant had demonstrated non-compliance in relation to his genuine reason of recreational hunt/vermin control. 3. On 18 December 2019, Police inspected the Applicant's firearms safe keeping facilities. When questioned about his recreational hunting activities, the Applicant was unable to provide Police with a current property he had permission to shoot on, to support his genuine reason for firearms. The COPS Event of the inspection recorded that the Applicant "appeared dismissive" of Police, but there was no evidence as to how this view was formed, other than the observation that he had kept repeating, "I used to shoot at Gloucester and other properties", and that it had been "a fair while" since he had last used his firearms. Police told the Applicant he would need to supply "signed documentation" from property owners for his genuine reason to hold a firearms to be accepted. 4. Clause 30(4) of the Firearms Regulation 2017 provides, relevantly, that if a licensee has permission to shoot on rural land, the licensee must, on demand at any time by police officer, produce for inspection, written permission, and if it is not in the licensee's immediate possession, produce that evidence as soon as practicable, but not more than 48 hours. The Respondent submitted that evidence of permission to shoot on land was not provided until 30 January 2020 on the Applicant's reapplication for a firearms licence. While a "letter of authority" form dated 30 January 2020 was completed, in fact Ms Collins supplied a letter dated 19 December 2019 in which she authorised the Applicant to shoot on her property to undertake vermin control. 5. Ms Collins letter of 2 April 2021 outlines that the Applicant is the part time caretaker of her property at Gloucester – a role he had been performing for 8 years. His role is in the quarterly eradication of wild dogs; he is also called upon if urgently needed. Ms Collins was not called for cross examination. I accept that the Applicant undertakes shooting at her property and has done so, intermittently, for 8 years. 6. I accept that the Applicant's genuine reason for a firearms licence continues to be recreational hunting/vermin control. I do not find there to have been recent non-compliance in relation to his genuine reason. Breach of traffic laws and regulations 1. It was submitted by the Respondent that the Applicant's extensive history of traffic infringements demonstrates a disregard for public safety and his own safety. 2. The Applicant has an extensive traffic record. Since 1 November 2000, he has received a total of 32 traffic infringement notices, including: 1. exceed speed limit by not more than 10km/h whilst driving a motor vehicle (camera detected) on 29 July 2020, 25 May 2020, 29 September 2014, 19 October 2013, 31 March 2010 and 27 September 2009; 2. exceed speed limit by not more than 10 km/h but not more than 20 km/h whilst driving a motor vehicle (camera detected) on 4 December 2019; 3. exceed speed limit by more than 20 km/h but not more than 30km/h whilst driving a motor vehicle (school zone) on 24 April 2017 and 10 September 2014; 4. driver not wearing seatbelt on 27 March 2017; 5. driver of a vehicle other than a bus drive in bus lane (camera detected) on 24 March 2015; 6. disobey traffic lights (camera detected) on 10 August 2015 and 19 October 2010; 7. not stop at red arrow (camera detected) on 1 July 2013; 8. drive using hand-held mobile phone on 18 September 2009; 9. exceed speed limit by not more than 15 km/h whilst driving a motor vehicle (camera detected) on 20 October 2008, 7 April 2008, 28 July 2007, 29 July 2006, 29 July 2006, 4 December 2005, 3 February 2006, 5 June 2005, 12 August 2004, 4 September 2006, 21 January 2004, 27 January 2004, 2 March 2003, 20 March 2003, 2 March 2003, 10 September 2002 and 21 October 2001; 10. exceed speed limit by more than 15 km/h but not more than 30km/h whilst driving a motor vehicle (camera detected) on 20 August 2005. 1. I was informed that the Applicant's traffic record is so extensive that, despite being licensed since 1977, his record is only available from 2000 due to the number of offences committed. As a result of the Applicant's numerous offences, his licence has been subject to nine default suspensions since 2000 and numerous good behaviour conditions. In 2008, the Applicant was refused a Unrestricted (Class C) licence due to his demerit points. 2. The Applicant gave evidence that his driving history was so poor because of his security work he was obliged to urgently respond to alarms, including duress buttons. He exceeded the speed limit in order to reach the site of the alarm without delay. His evidence however was that he had last worked as a security guard in 2003/4. 3. While his explanation may go some way to explaining some of the speeding offences they do not explain the balance of the (non-speeding) offences at all. Further, the Applicant said he last worked as a security guard in 2003/4, so offences after that time cannot be explained as his response to urgent call-outs, and I regard his explanation as disingenuous. 4. The Appeal Panel in Masterson v Commissioner of Police [2017] NSWCATAP 206 stated at [133]: In our view, the possibility that the holder of a licence may not comply with the law is a relevant matter in exercising a discretion to revoke a licence on public interest ground...the test is very wide and in matters of public safety and the possession and use of firearms, it could hardly be suggested to the contrary. 1. Some of the Applicant's offences predated the issue of his (successive) firearms licence(s) and hence, should have been known to Police at the time each of his firearms licences were issued; his repeated traffic infringements did not hinder those earlier firearms licence applications. 2. The firearms regulatory scheme, and licensing scheme, focuses primarily on public safety. The Applicant's very poor history of traffic offences shows a disregard for another regulatory scheme which aims, like the firearms legislation, at ensuring public safety: see Tannous v Commissioner of Police [2011] NSWAT 116); Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145, SM Scahill at [81]. A disregard for a regulatory scheme aimed at ensuring public safety is a very relevant consideration in determining whether or it is contrary to the public interest for the Applicant to hold a firearms licence. Given the extensive history of traffic infringements and that his last recorded offences were as recent as May and July 2020, I cannot be satisfied that similar conduct will not be repeated, given his long-standing disregard for the traffic regulatory scheme. Similarly, I cannot be satisfied that he may not disregard aspects of the firearms regulatory scheme. What is the Applicant's interest in holding a firearms licence? 1. The Applicant said that he really only needs a firearms licence to do vermin control, which he undertakes for Ms Collins. He said though, that he is unemployed and does nothing other that vermin control as a 'social activity'. 2. Private interests are not the only matters to be taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681. Consideration of public interest allows for matters going beyond an applicant's character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33]. The concept includes standards acknowledged to be for 'the good order of society and for the well-being of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. Accordingly, the Applicant's genuine reason for holding a firearms licence, cannot not be given priority over the public interest. As observed by the Tribunal in Aubrey v Commissioner of Police [2005] NSWADT 266 at [21] "where there has been, or is, a possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm". Conclusion in relation to public interest 1. The Applicant's past history of domestic violence, past mental illness and his association with a person with extensive criminal history by themselves might not have been sufficient to warrant a finding that he is not a fit and proper person to hold a firearms licence. Of concern though was the Applicant's apparent lack of concern about having a person with Sam's history residing with him when there were firearms kept there. 2. When considered with his lack of candour, his record of false or misleading statements in licence applications, and his very poor traffic record, a more negative picture emerges. Notwithstanding that I have found the Applicant to be a fit and proper person to hold a firearms licence, taking the Applicant's conduct as a whole, I am not satisfied that it is presently in the public interest for him to hold a firearms licence. While the Tribunal can never be completely satisfied that there is no risk in an applicant having a firearms licence, in the circumstances, I am unable to find with confidence, on all the evidence, that the renewal of the Applicant's licence would entail virtually no risk to public safety. In particular, the Applicant has shown a long-standing disregard of road traffic legislation that is designed to protect the public and an at best negligent attitude to the requirement of accuracy in complying with the firearms disclosure legislation. 3. Accordingly, I find on all the evidence that it is not presently in the public interest for the Applicant to hold a firearms licence. 4. I was referred to Prevetera v Commissioner of Police [2021] NSWCATAD 133, which set aside the decision, on the condition that the applicant's firearms would not be stored with the applicant. It was suggested on the Applicant's behalf that, as his firearms are already in the care and possession of his son, (who presumably is now licensed), he should have his firearm licence restored. The facts in that matter were very different to the matter at hand, and I do not propose to allow the Applicant to have a licence with conditions imposed. DECISION 1. 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 November 2021