Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mahoney v Commissioner of Police [2022] NSWCATAD 60 Hearing dates: 11 February 2022 Date of orders: 23 February 2022 Decision date: 23 February 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: Emeritus Prof G D Walker, Senior Member Decision: (1) Decision under review set aside. (2) A category AB firearms licence is to be issued to the applicant. Catchwords: LICENSING – firearms – revocation of licence – medical reports Legislation Cited: Administrative Decisions Review Act 1996 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Firearms Act 1986 (NSW) Firearms Regulation 2017 (NSW) Cases Cited: Allan v Commissioner of Police, New South Wales Police [2008] NSWADT 230; AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5; Briginshaw v Briginshaw (1938) 60 CLR 316; Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42; Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16; Cusumano v Commissioner of Police, New South Wales Police Force [2001] NSWADT 50; Drake v Minister for Immigration and Ethnic affairs (1979) 2 ALD 60; Economides v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 128; ELU v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 277; Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218; Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117; Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 388; Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97; McDonald v Director-General of Social Security [1984] FCA 57, (1984) 1 FCR 354; Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10; Petas v Commissioner of Police, New South Wales Police Force [2013] NSWADT 137; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10; Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110. Category: Principal judgment Parties: Darren J Mahoney (Applicant) Commissioner of Police (Respondent) Representation: Solicitors: Paton Hooke Lawyers (Applicant) Sparke Helmore Lawyers (Respondent) File Number(s): 2021/00219870 Reasons for decision 1. The applicant Mr Darren J Mahoney applied to this tribunal on 30 July 2021 for review of a decision by the respondent Commissioner to revoke his category AB firearms licence No. 411819766 (exhibit R1, p 25). 2. The applicant had held a firearms licence since 1995. A category AB licence was issued to him on 23 August 2017, due to expire on 1 February 2022. On 16 July 2020, the respondent wrote to Mr Mahoney stating that the Firearms Registry had received information indicating that his ability to have continuous and responsible control over firearms might be impaired because of a physical disability or other health-related issue (exhibit R1, p 17). The information indicated that he suffered from a musculo-skeletal disorder and neurological condition that had been recorded on his driver's licence by Roads and Maritime Services. 3. On 16 July 2020 the registry wrote to the applicant stating that before continuing to assess his ability to hold a firearms licence, the registry would wish to receive a report from a medical practitioner (id., p17). Also on 16 July 2020, the respondent issued a letter to Mr Mahoney's doctor explaining the purpose of the medical assessment and listing a number of matters that the report should deal with (id., p 20). 4. On 4 September 2020 the applicant provided to the respondent a medical assessment from his general practitioner, Dr Allan Johnson, of Taree, dated 12 August 2020 (id., p 23). The report stated that the applicant suffered from chronic back pain and detailed a number of requirements that must be adhered to in order for him to use firearms safely. The doctor stated that his ability to exercise continuous and responsible control over firearms might be impacted if those requirements were not rigorously adhered to. The assessment also stated that he was taking several medications that would affect his alertness and other medications that if causing a hypoglycaemic effect would have serious effects on his alertness. 5. On the basis of that information, the respondent was satisfied that it would not be in the public interest for him to remain authorized for the possession and use of firearms, and therefore revoked his category AB firearms licence. On 17 February 2021, the applicant sought an internal review of the respondent's decision, but as the respondent had not dealt with the review within the time allowed, the respondent was deemed to have refused the application. The applicant then applied to this tribunal for review on 30 July 2021. Applicable legislation 1. Section 24(2) of the Firearms Act sets out a number of grounds on which a firearms licence may be revoked, including s 24(2)(d), which provides that a licence may be revoked "for any other reason prescribed by the regulations". 2. Clause 20 of the Firearms Regulation 2017 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 evidence 1. The respondent did not call any oral evidence, but relied on documentary material, including the s 58 documents (exhibit R1). 2. In oral evidence at the hearing the applicant adopted his affidavit sworn on 5 November 2021 (exhibit A1) in which he stated that he had been seeing his general practitioner, Dr Allan Johnson, for about 14 years. On 12 August 2020 Dr Johnson had provided a report to the Firearms Registry (exhibit A1, annexure A) which stated that he was suffering with chronic back pain and diabetes with symptoms of hypoglycaemia. 3. He was prescribed analgesics to help with depression as a result of a medication, Lyrica, that he had been taking to assist with his chronic back pain. In that report, Dr Johnson noted that at the time the analgesics were being tapered with an expectation of total withdrawal, and in fact he ceased taking the analgesics in or about late February 2021. 4. On 13 October 2021, he again saw Dr Johnson, who prepared a further update of his prognosis (id., annexure B) on the same date. In that report, Dr Johnson stated that he believed the applicant had addressed all the factors that were relevant to the Firearms Registry's revoking his firearms licence. He was now completely off the analgesics and had not taken any since or about late February 2021. In March 2021 he underwent surgery on his right toe, as it had a serious infection caused by stepping in a muddy bird aviary without proper foot protection. The operation was a success and his foot had fully healed. 5. After the surgery, he had lost feeling in his right foot, but it had returned over a period of about two months. From May 2021, the feeling had fully returned. He also remains consistent with his diabetes treatment and his doctor had raised no concerns about it. 6. On 16 December 2020, the Firearms Registry issued him with a notice revoking his firearms licence, referring to the following matters: * That he suffered from chronic back pain, * That he was taking several medications that would affect his alertness, and * That if he had a hypoglycaemic episode while on that medication, as altered [sic] would be further hampered. 1. The medication referred to was the analgesics. At the present stage, he had been prescribed medication to assist with lowering cholesterol as well as diabetes management. He is no longer on analgesics. As he has lost some 30 kg since August 2020, his managing of his diabetes has benefited immensely. That medication does not cause hypoglycaemic fluctuations. He manages those through insulin. 2. At the time his licence was issued in 2017, he had been on analgesics for depression. Since being granted a licence, his chronic back pain had improved immensely and he had tapered completely off the analgesics. 3. He had no criminal history and had never been the subject of an apprehended domestic or personal violence order against him. 4. In oral evidence at the hearing, the applicant reiterated those points and said he had held no prescription for analgesics since 13 October 2021. He had seen Dr Johnson twice since then, for chronic back pain and analgesics, but since 13 October 2021 those consultations had not been in connexion with back pain. 5. Cross-examined by Ms Tipene on behalf of the respondent, the applicant explained that he had formerly been suffering from depression because of his back pain. He still has back pain but manages it with exercise, walking 5 km a day. Lyrica was an analgesic, but he had not taken it since 13 October 2021. He was taking insulin for diabetes as he needed to manage hypoglycaemia fluctuations, but since late 2019 or early 2020 he had not experienced depression. He was also prescribed medication for cholesterol. His surgery for his foot injury was completely healed and he needed no medication for it. 6. Asked about the reference in his RTA driver licence records to sleep disorders and apnoea (exhibit R1, p 16), he said he has a machine to deal with that problem which he is required to use as a condition of his driver licence. He has had apnoea for about 5 years but is not on any medication for it. He takes exercise for the back pain. 7. Ms Tipene then drew the witness's attention to the sentence in Dr Johnson's 13 October 2021 report reading "Psychological environment triggers awareness". That, he replied, had been addressed. The question was whether his mental state generally was under control, and he was not having any treatment for any mental states. The depression he had suffered formerly was due to his back pain, which was now under control. Applicant's submissions 1. The applicant relied on two sets of written submissions, one document having been lodged on 17 February 2021 in connexion with his application for an internal review (exhibit R1, pp 29 – 30) and the second filed on 10 February 2022 (exhibit A2). In the former, Mr Sayed on behalf of the applicant submitted that the respondent had interpreted the 12 August 2020 medical report incorrectly, by failing to particularize the "number of requirements that must be adhered to" to use a firearm. It also failed to particularize how the applicant's ability to exercise continuous and responsible control over firearms was impacted by his compliance or non-compliance with those requirements. 2. The notice of revocation appeared, the submissions continued, to conflate use of medication and a corresponding hypoglycaemic effect erroneously. The medication the applicant was on had no corresponding hypoglycaemic effect and any symptoms associated with blood-sugar fluctuations were correctly managed through the administering of insulin and glucose. It also erroneously conflated the applicant's hypoglycaemic fluctuations through type 2 diabetes as a consideration when assessing whether an individual is a fit and proper person and can safely handle firearms. 3. In Economides v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 128, a clear distinction was made wherein the applicant had demonstrated a willingness to threaten and intimidate others, and while there was no evidence of physical violence, he had been the subject of numerous AVOs. The tribunal held that it was in the public interest not to renew his licence on the basis that it would be difficult for him to refrain from violence during his periods of hypoglycaemia and not that his diabetes impacted on his ability to use firearms safely. 4. At the time the applicant was granted a licence in 2017, he was living with immense chronic pain and taking anti-depressants. His pain condition had improved immensely and the medication he is now prescribed is substantially less than that which he was on at the time. His prescribed medication had changed on 18 December 2020. He would be assessed as presenting "virtually no risk" to public safety. There was no dispute that the applicant is a fit and proper person. The decision on the revocation notice bordered on discrimination in circumstances where there was no objective basis on which the respondent, first, needed to regulate Mr Mahoney, and secondly, by his regularly attending a GP assessment as he had, that this was not sufficient to satisfy the respondent that he is in control of his medical condition. 5. The applicant's further written submissions (exhibit A2) contended that the respondent had failed to give proper consideration to Mr Mahoney's affidavit of 5 November 2021, which when read in conjunction with Dr Johnson's report of 13 October 2021 provided a sufficient factual background to support the conclusions of Dr Johnson. It was noted that the respondent accepted that the applicant's physical state had improved immensely. 6. Given that both the August 2020 GP report and the October 2021 GP report were related matters, the tribunal could be satisfied that if the applicant were currently on medication that adversely affected his capacity to handle firearms, Dr Johnson would have said so. The absence of any disclosure of the current medication could not be said to be fatal to the applicant's application. The critical point was that Mr Mahoney was no longer on any medication that might affect his alertness. That was crucial to the respondent's initial decision to revoke the firearms licence. 7. There were a number of key factors to consider when public interest was raised. Public interest means that the interests of the public take priority over private interests of the persons affected by the decision. In that regard, the most relevant public interest concerns were: * No offence had been committed against a member of the public in connexion with the revocation; * No specific incident had been referred to, and as such there had been no level of actual risk to the public's safety while Mr Mahoney held a licence; * There had been no incidents in the public domain, whether in connexion with a firearm or not, the risk presented sat at its highest as a mere hypothetical. The reasons outlined in the August 2020 report appeared to be more focused on the risk Mr Mahoney posed to himself. 1. The public would find it appropriate for an individual with diabetes or chronic pain or both to hold a firearms licence. Chronic pain is a common condition, as is the use of analgesics to treat illnesses. Diabetes is a common issue also. One of those two conditions arose as consistent factors in criminal offences, juxtaposed with mental health disorders or issues of addiction which are common features of criminal offences. 2. Mr Mahoney had held a licence for a significant period of time and as a person of good character with no criminal antecedents. He is also close to retirement age and there is no evidence to suggest he does not lead a pro-social life. The appropriate application of public interest generally revolves around criminal activities, affiliations, mental health and addiction complications. None of those issues were present in this case. There are other circumstances where the conduct of an applicant would have the potential to undermine the objects of the Firearms Act, but that was not a factor in this application. 3. The respondent relied on authorities that all concern mental health complications. The applicant's licence was revoked due to the potential reduction in his alertness associated with the use of analgesics. There was a distinct difference between issues of mental health and side effects of medication. On the one hand, serious mental health issues such as schizophrenia, bipolar disorder, borderline personality disorder and suicide ideation do not simply disappear but are merely managed. However, complications with medications and when the use of medication ceases. 4. The applicant's stellar history and confirmation that he is no longer prescribed or using analgesics that affect his alertness show that there is virtually no risk to the public in the applicant's holding a licence. 5. In oral submissions at the hearing the applicant reiterated those points, contending that there were no public interest issues remaining and the applicant's personal and firearms history were outstanding. The crucial issue had been the medications the applicant was taking for his back pain. There was a big difference between that and any question of mental health. His depression had not been serious and had gone away, the initial problems having been dealt with. He went out of his way to meet the registry's requirements. What more could he have put forward to show that his problems had been dealt with? 6. In further submissions in reply, Mr Sayed contended that the operative factor in Dr Johnson's first report was the medication he was taking for back pain, not his handling of firearms as such. The 13 October 2021 report showed that he was no longer taking medication that would affect his alertness. Consequently, the issue about the reference to strict safety requirements, which were basic rules of firearms safety, was intrinsically linked with the issue of back pain medication affecting his alertness and had been dealt with. His back pain was now controlled by exercise and he was not taking any medication for it. The operative factor had been satisfied. Respondent's submissions 1. The respondent relied on written submissions dated 24 January 2022 (exhibit R2) which, after outlining the background to the case and the applicable law, noted that the applicant had previously held a firearms licence since 30 October 1995 without incident and had no criminal record. Information had been made available to the respondent, however, to the effect that the applicant might have a physical disability or other health condition impairing his ability to have continuous and responsible control over firearms. On 16 July 2020, the respondent issued a request for a doctor's assessment. 2. On 4 October 2020, a report was received from Dr Johnson dated 12 August 2020, which noted that he had been treating the applicant for 13 years. The applicant had chronic back pain and was taking several medications that would "affect his alertness and others that if causing a hypoglycaemic effect would have serious effects on his alertness". The analgesics he was then taking that would lower his alertness were being tapered, with the expectation of total withdrawal. 3. The report stated that the applicant must use "all care" when moving with a loaded firearm and traversing fences, and keeping the safety catch engaged at all times when carrying the firearm. Dr Johnson thought the applicant's condition "may impact on his ability to exercise continuous control if the previously stated rules of carriage aren't rigorously adhered to". There had not been any history known to Dr Johnson of lack of control in the past, there were no current potential risks for issuing a licence and there had been no psychiatric issues or personality disorder that would impinge on the safety of carrying a firearm. 4. An updated report dated 13 October 2021 stated that "there were previous problems but today I believe I have addressed all the factors that were of interest in the issuing of a firearms licence medically". Analgesics affecting his mental state had been withdrawn, diabetes was under control and hypoglycaemic episodes were prevented, his diabetic foot neuropathy prevention and assessment had been satisfied, as had the need for falls prevention from that neuropathy. Dr Johnson said he was now satisfied with overall diabetic control, adding that "Psychological environment triggers awareness". On the basis of the above, Dr Johnson was satisfied that the applicant was "not a danger to himself or the broader community" in holding a firearms licence. 5. In AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5, [23], the tribunal had held that while both effective treatment and a lengthy period of stability were relevant to assess the public interest, they were not mandatory considerations. But the tribunal considered 15 months from the date of an applicant's suicide threat to the tribunal's decision to be an inadequate period time for it to be satisfied that there was virtually no risk, despite a psychologist report that the risk posed by the applicant was low. In Allan v Commissioner of Police [2008] NSWADT 230, [33] – [34], the tribunal considered a period of 15 months insufficient for it to be satisfied that there was virtually no risk. 6. In ELU v Commissioner of Police [2020] NSWCATAD 277, [98], the tribunal viewed a period of 17 months as insufficient for it to be satisfied that there was virtually no risk. In the circumstances and in the absence of more recent evidence from the applicant's general practitioner, the tribunal in this case could not be satisfied that there was "virtually no risk" to the public if the applicant were granted a firearms licence at this time. 7. In oral submissions at the hearing, Ms Tipene stressed that the applicant's license was not revoked solely because of the medications he was then taking. There was also the doctor's stipulation that the particular safety requirements mentioned must be strictly complied with, but that was a difficult matter to regulate. Consequently, medications were not the only reason, such that the public interest was still in issue. 8. In Constantin v Commissioner of Police [2013] NSWADTAP 16, [33], the Appeal Panel had pointed out that the public interest allows a consideration of issues going beyond the applicant's character 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". Public safety was to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218, [24]. 9. While there was no evidence that the applicant had been careless with firearms, there was still at the present time a relevant issue about safety requirements and medications. The tribunal could not be totally satisfied in relation to those issues although the applicant's physical state was better now than at the time of the August 2020 report. But his condition had deteriorated before it had improved at the time of the second report in relation to his foot neuropathy 10. His foot condition had resolved and his diabetes was under control, but the October 2021 report did not specifically mention the applicant's chronic back pain, from which he still suffers, although he has been able to control it through exercise. Nor did it outline with any detail the applicant's currently remaining medications (since the withdrawal of analgesics) and the effects they might have on his ability to operate a firearm. It also did not describe with any level of detail how long those improvements had been in effect or whether the changes in the applicant's health were expected to remain in their improved state. 11. The report therefore did not sufficiently evidence that the applicant's condition had sufficiently improved and stabilized so as no longer to present a risk to the wider community. There was therefore insufficient evidence in relation to chronic back pain or about the effects of his currently remaining medications on his ability to control firearms. There was also no medical evidence concerning apnoea, although that condition also appeared to be under control. 12. It could thus not be said at this time that there was no risk to the public because of the seriousness of the matters raised by the expert evidence. Some questions still remained. The respondent did not suggest that the applicant suffered from any serious mental health problem, the concern being rather that there were gaps in the medical reports. In the circumstances and in the absence of more recent evidence from the applicant's medical practitioner, the tribunal could not be satisfied that there is virtually no risk to the public if the applicant is granted a firearms licence. Consideration 1. Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77. 2. The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the CAT Act (s 30) and the Firearms Act, including the Commissioner's revocation of a licence or permit: s 75(1)(c). The tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357. 3. Clear guidance as to how the act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3) states that a licence must not be issued unless 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. Section 11(4)(c) also provides that a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant's intemperate habits or being of unsound mind. 4. The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] – [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] – [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] – [12]. They do, however, provide guidance for the tribunal's exercise of jurisdiction. 5. It is not suggested that the applicant is not a fit and proper person to hold a firearms licence. The ground on which the respondent argues for licence revocation is that it is not in the public interest for the applicant to hold a licence, within the meaning of s 24(2)(d) and cl 20. 6. The "public interest" factor allows a consideration of issues going beyond the character of the applicant to be taken into account. They 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, New South Wales Police Force [2013] NSWADTAP 16. 7. The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety. The tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The applicant's personal interest in retaining his licence is subordinate to the public interest in ensuring public safety. 8. As the Court of Appeal observed in Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368, [1], the power to grant an application under the Firearms Act places significant emphasis upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant. Similarly, in Hill the tribunal stressed that public safety is to be given paramount consideration. 9. Tribunal decisions have pointed out that the question of potential risk to public safety is not to be applied in an absolute manner, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] – [66] 66]. 10. Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that "In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration". Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74]. 11. The respondent's action in relation to the applicant's AB licence originated in information made available to the respondent to the effect that the applicant might have a physical disability or other health condition that impaired his ability to have continuous and responsible control over firearms. For that reason, the respondent on 16 July 2020 issued a request for a doctor's assessment. 12. On 4 September 2020, a report was received from Dr Allan Johnson, general practitioner of Taree, dated 12 August 2020. It is appropriate to reproduce it here in full, omitting formal parts: Suitability to hold a firearms licence 1. I have read the letter dated 16 July20. 2. I have treated Mr Mahoney for 13 years. 3. Conditions: Chronic back pain. 4. Patient must use all care when moving with a loaded firearm and traversing fences to unload completely the firearm in order to cross a fence. The safety device must at all times be applied when carrying the firearm, with all necessary requirements that the training legislation requires for due diligence. 5. The applicant is taking several medications that would affect his alertness and others that if causing a hypoglycaemic effect would have serious effects on his alertness. The current analgesics that would lower his alertness are being tapered at this time with the expectation of total withdrawal. 6. EXPERT OPINION The applicant's condition may impact on his ability to exercise continuous control if the previously stated rules of carriage aren't religiously adhered to. There has not been any history known to me of lack of control in the past. There are no current potential risks for the issuing of the licence as per above rules. There have been no psychiatric issues or personality disorder that would impinge on the safety to carry a firearm. The applicant hasn't previously posed any threat. There have [sic] not been any previous history. 1. By way of annexure B to his affidavit of 5 November 2021, the applicant provided an updated report from Dr Johnson, dated 13 October 2021. That report may also be set out in full, again omitting formal parts: RE: DARREN MAHONEY dob 9 Dec 1967 Today I examined Darren wrt the re-application for a firearms licence. There were previous problems but today I have addressed all the factors that were of interest in the issuing of a Firearms Licence medically. The key features were: 1. Mental State: Withdrawal of analgesics affecting mental state. 2. Diabetes control and prevention of Hypoglycaemic episodes. 3. Diabetic foot neuropathy prevention and assessment now satisfied. 4. Falls prevention/from above neuropathy. Loss of foot feeling for trip prevention. 5. Overall Diabetic control I am satisfied. 6. Psychological environmental triggers awareness. I am satisfied that Mr Mahoney is not a danger to himself or the broader community in being granted a firearms licence. 1. The respondent notes that the licensing scheme set out in the Firearms Act is not about punishment, but about protecting the public. It requires the tribunal to identify the possible risks to the public, and then make decisions that are consistent with the need to reduce any risks to a minimum: Petas v Commissioner of Police, New South Wales Police Force [2013] NSWADT 137, [36). 2. The respondent accepted that as at the date of the October 2021 medical report, the applicant's physical state had improved as compared with that at the time of the August 2020 report. The respondent's concern, Ms Tipene submitted, was that there were gaps in the medical evidence: * the October 2021 report did not specifically mention the applicant's chronic back pain; * it did not outline with any level of detail the applicant's current remaining medications since the withdrawal of the analgesics and the effects they might have on his ability to control a firearm; * it did not describe with any level of detail how long those improvements had been in effect or whether the changes in the applicant's health were expected to remain in their improved state; * The second report did not sufficiently show a sufficient period of stabilization. 1. Dr Johnson's chief concern in the first report, however, related to the analgesics the applicant was then taking for his back pain, and to a lesser extent diabetes control. Even so, the report concluded by stating that "There are no current potential risks for the issuing of the licence as per above rules". In other words, even when taking his then current medications, which might "impact on his ability to exercise continuous control", he could safely hold a firearms licence if he followed the rules that had been set out earlier in the report. 2. The rules Dr Johnson referred to, however, were quite basic, relating to unloading when traversing fences and leaving the safety catch engaged at all times when carrying a firearm, "with all the necessary requirements that the training legislation requires". Climbing over or through fences is a well-recognized hazard of rural shooting and the standard precautions are essentially as stated in the report. Keeping the safety on at all times when handling a firearm is also fundamental. 3. In his later report, Dr Johnson noted that "There were previous problems" but believed that he had "addressed all the factors that were of interest in the issuing of a Firearms Licence medically" (my emphasis). He concludes with the categorical statement that "I am satisfied that Mr Mahoney is not a danger to himself or the broader community in being granted the Firearms licence". 4. Although he does not specifically mention back pain, Dr Johnson does refer to "Withdrawal of analgesics affecting mental state", and those were the analgesics he had been taking for his back problem, which was now under control through exercise. He was also satisfied with overall diabetes control. While the second report does not specifically discuss the applicant's current medications or their likely effects, the earlier report makes it plain that Dr Johnson was fully aware of the alertness effects that could result from the medications he was then taking and of their implications for public safety. 5. Thus the second report notes the satisfactory control of diabetes and the prevention of hypoglycaemic episodes, as well as the satisfaction of foot neuropathy with resulting return of sensation and trip prevention. While both reports might be considered a trifle laconic, the clear implication of the findings in Dr Johnson's second report is that the applicant is not currently taking any medication that would affect his mental state in relation to firearm safety. 6. The respondent also contended that the medical reports did not state how long the improvements had been in effect – four months, in the respondent's submission -- or evidence a period of stabilization of Mr Mahoney's condition sufficiently long to permit a finding that issuing a firearms licence to him would entail no significant risk to public safety. In support of that proposition the respondent cited three cases in which Ms Tipene said the tribunal had considered 15 or 17 months from the date of a mental episode to the date of the tribunal decision to be an inadequate period of time for it to be satisfied that there was virtually no risk. 7. All three cases, however, concerned applicants with a history of psychiatric problems or suicide threats. In AML there was a suicide attempt with sleeping pills 8 months (not 15 months) before the hearing, but Hennessy DP declared that "Not every suicide attempt will justify the revocation of the person's firearms licence" on public interest grounds (at [22]) and decided the case in the applicant's favour. AML thus appears not to support the respondent's preferred position. 8. In Allan, the next case cited in the written submissions, the applicant suffered from a personality disorder and depression resulting in admission to Maitland hospital mental health unit 15 months before the hearing. In ELU the applicant had a personality disorder and suicidal ideation that had also resulted in admission to Maitland psychiatric facility. The tribunal considered that a period of 17 months insufficient for it to be satisfied there was virtually no risk to public safety. In the present case it is common ground, however, that the applicant has never suffered from any psychiatric disorder or condition. 9. The adverse effects on alertness noted in the earlier report chiefly resulted, Dr Johnson considered, from the analgesics he was then taking, which were "being tapered at this time with the expectation of total withdrawal", and which in fact have been totally withdrawn. Diabetes control was also a concern. The second report indicated that those effects disappeared when the medications causing loss of alertness were withdrawn or otherwise controlled and when diabetes was satisfactorily managed. There was no underlying mental condition that might be expected to linger after cessation of the medications as there had been in the cases relied on by the respondent. 10. The applicant is a man aged 54 with no criminal record or other adverse notice – and in particular no record of violence, threatened violence or self-harm --, no history of drug or alcohol problems, no record of careless handling of firearms over his 27 years of firearms ownership and no history of mental disorder or suicidal ideation. Formerly he operated his own automotive repair business, but because of his back problems he was unable to continue with that work and is now effectively retired. There is no suggestion that he is not a fit and proper person to hold a firearms licence. 11. On a balanced view of the evidence, bearing in mind all the relevant circumstances, I find that there is virtually no risk to the public (including to the applicant himself) involved in the grant of a firearms licence to the applicant. As was said in Webb, "Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration". I therefore conclude that it would not be contrary to the public interest for the applicant to continue to hold a licence. The decision under review should be set aside. Orders 1. Decision under review set aside. 2. A category AB firearms licence is to be issued to the applicant. ********** 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: 23 February 2022