Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Andreata v Commissioner of Police, NSW Police Force [2022] NSWCATAD 164 Hearing dates: 28 October 2021 and 25 February 2022 Date of orders: 24 May 2022 Decision date: 24 May 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: J Gatland, Senior Member Decision: The decision under review is affirmed. Catchwords: LICENSING — firearms licensing — withdrawal of licence — revocation – public safety restrictions – genuine reasons Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Biodiversity and Conservation Act 2016 (NSW) Firearms Act 1996 (NSW) Firearms Regulation 2017 Game and Feral Animal Control Act 2002 (NSW) Mental Health Act 2007 (NSW) Cases Cited: Cruickshank v Commissioner of Police [2022] NSWCATAD 115 Dale v Commissioner of Police, NSW Police Force [2019] NSWCATAD 134 Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 Ward v Commissioner of Police [2000] NSWADT 28 Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 Category: Principal judgment Parties: Valentin Andreata (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Solicitors: Applicant (Self-represented) Lindsay Taylor Lawyers (Respondent) File Number(s): 2021/222142 Publication restriction: None REASONS FOR DECISION Introduction 1. The Applicant, Mr Andreata, applied to this Tribunal for a review of a decision by the Respondent, the Commissioner of Police, NSW to revoke his Category AB firearms licence. 2. The decision to revoke the firearms licence was made on 19 June 2020 such decision was the subject of an internal review which was completed on 13 September 2021, after the commencement of these proceedings. 3. On internal review, the Respondent affirmed the original decision on the basis that there was no evidence to suggest the current state of Mr Andreata's mental health would not negatively impact upon his ability to control firearms safely and responsibly and exercise rational judgement. 4. A person may apply to this Tribunal for administrative review of the Commissioner's decision to revoke a firearms licence pursuant to the Firearms Act 1996 (NSW), s 75(1)(c) and the Administrative Decisions Review Act 1997 (NSW), s 9. 5. In conducting the review, the Tribunal is required to consider the correct and preferable decision having regard to the material before it, including the facts and applicable law; Administrative Decisions Review Act, s 63. Applicable Law 1. The possession and use of firearms in New South Wales is regulated by the Firearms Act. The underlying principles of the Firearms Act are set out in s 3(1) and include: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety – (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, … 1. The Firearms Act, s 3(2) sets out objects which include: (c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm, … 1. In Dale v Commissioner of Police, NSW Police Force [2019] NSWCATAD 134 at [46], the Tribunal considered, having regard to the underlying principles of the Firearms Act, s 3(1), that the primary consideration in relation to public interest must be public safety. The interest of an applicant for a firearms licence is subordinate to that consideration; Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276. 2. A person must not possess or use a firearm unless authorised to do so by permit or licence; Firearms Act, s 7A. The Firearms Act, s 11(3) requires that a licence must not be issued unless: The Commissioner is satisfied that the applicant … can be trusted to have possession of firearms without danger to public safety or to the peace. 1. In Ward v Commissioner of Police [2000] NSWADT 28 at [28] the Tribunal stated: The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.' 1. The views expressed in Ward have been adopted in numerous decisions of this Tribunal. Such test cannot be applied mechanistically, lest it give rise to an insurmountable burden upon the part of firearms applicants; Martin at [66]. Rather, a nuanced and careful consideration of the evidence before the Tribunal is required where only real and appreciable risks should be taken into account; Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [32], Cruickshank v Commissioner of Police [2022] NSWCATAD 115 [13]–[20]. 2. The Firearms Act, Division 2 provides for a licensing scheme for permitted possession and use of various types of firearms for specified reasons. Prior to its revocation, Mr Andreata held a licence to possess and use firearms listed in categories A and B and he was permitted to possess and use those firearms for reasons of recreational hunting/vermin control, such reasons being defined as "genuine reasons" for the purposes of the Firearms Act, s 12 and the table in that section. 3. Person protection, the protection of others and the protection of property are not listed among the genuine reasons in the Firearms Act, s 12. Firearms Act, s 11(8) provides that the regulations may provide other mandatory and discretionary grounds for refusing to issue a licence. 4. Relevantly, the Firearms Regulation 2017, r 12(2) provides that: The Commissioner may refuse to issue a permit authorising the possession or use of a firearm if the Commissioner is satisfied that the applicant intends to possess or use the firearm for personal protection or the protection of any other person or for the protection of property. 1. The Commissioner has the power to revoke a firearms licence for any reason for which an application for a firearms licence would be required to be refused; Firearms Act, s 24(2). Material Facts 1. There was no dispute that Mr Andreata is a person without any criminal record having never been charged with any offence and, with the exception of the incident which gave rise to the revocation of his licence, has no detected or declared mental illness or disturbance. 2. In June 2017, Mr Andreata applied for and was granted a Category AB firearms licence. The purpose of obtaining that licence was "Recreational Hunting/Vermin Control" and was based on his ownership of a rural property at Taralga in New South Wales. 3. In reviewing that application form, the special need for seeking a Category B firearms licence was that game/vermin were to be hunted or controlled on the property on which Mr Andreata proposed to shoot and included: Kangaroos, wombat, foxes, rabbit, wild pigs, wild dogs and cats. 1. Neither kangaroos nor wombats are game animals for the purposes of the Game and Feral Animal Control Act 2002 (NSW), s 5. As native mammals, both are protected species for the purposes the Biodiversity and Conservation Act 2016 (NSW), Sch 5 in respect of which it is offence to harm without having first obtained a specific licence under that legislation for such a purpose. 2. According to his written submissions, Mr Andreata sold his rural property at Taralga in 2018 and consequently sold back his firearm to a gun shop. There was no evidence before me that Mr Andreata currently has possession of any firearm. 3. In 2020, Mr Andreata purchased another rural property in the locality of Goulburn where he is building a house and where, he says, he requires a firearms licence and a firearm for the control of vermin. 4. I observe that, in the period between his sale of the property at Taralga in 2017 and his purchase of the property at Goulburn in 2020, Mr Andreata does not appear to have had a genuine reason to possess a firearm or hold a firearm licence. 5. On 15 June 2020, Mr Andreata presented himself to the reception desk at Campbelltown police station to report that he had been defrauded many years in the past by his brother-in-law. Constable Crossman attended to Mr Andreata and in speaking with him became concerned about Mr Andreata's mental state. 6. There is some controversy over precisely what was said when he attended the counter at the police station. For example, Mr Andreata submits he told Constable Cross that there had been times in his life when he had wished he didn't wake up. Constable Crossman gave evidence about this and other matters, her evidence about this is set out below in some detail. Mr Andreata submitted that, in saying this, he meant he wished he could die of natural causes in his sleep and not that he intended to convey any intention of self-harm. Mr Andreata further said that those thoughts were, in any event, present in his mind years ago, in the 1990s, when the fraud originally took place. Mr Andreata agrees however, that he became emotional when reporting the fraud to Police since he had been defrauded, beaten, had his truck smashed up and had been threatened every time he asked for the return of his money. 7. Constable Crossman gave evidence at hearing and was cross-examined by Mr Andreata. Constable Crossman had completed the usual police reports which were included in the bundle of documents filed by the Commissioner pursuant to the Administrative Decisions Review Act, s 58. Constable Crossman presented as a calm witness who was sure of her recollection of the interaction with Mr Andreata. It was her evidence at hearing that: 1. She heard Mr Andreata speak in a low voice and that it was difficult to get information and specifics from him. 2. When asked by her how he was feeling, he told her that Lifeline had told him to come to the station to make a report, that normally he lived with his brother who was away, that thinking about the fraud against him had made him depressed and that he was thinking about ending things. 3. Mr Andreata appeared to Constable Crossman to be emotional and distressed over the allegations he had come to the police station to complain about. When Mr Andreata attended the police station, neither he nor Constable Crossman were wearing face masks – though Mr Andreata put it to Constable Crossman that he recalled his mask falling down – Constable Crossman's recollection was that the attendance occurred prior to the mask mandate which was imposed in the weeks afterwards. Absent masks, I accept that Constable Crossman was able to assess Mr Andreata's facial expressions and affect. 4. In speaking to Mr Andreata, Constable Crossman formed the view that he would self-harm and was sufficiently concerned that she called the ambulance and detained him under the Mental Health Act 2007 (NSW), s 22 which empowers police to detain a person and take them to a declared mental health facility where, among other matters, it is probable that a person will attempt to kill or cause serious physical harm to themselves and it would be beneficial to a person's welfare to act in accordance with the Mental Health Act rather than in accordance with another law. 1. Police are required to complete a form when seeking detention for assessment under the Mental Health Act, s 22. Constable Crossman filled out a form in which she wrote that: Patient presented to Campbelltown Police Station to report a fraud regarding a loan of $150,000 he made to his brother 30 years ago. Patient told Police this has caused him depression for many years but has only recently started talking about it, -Patient called Lifeline today and they advised him to attend the police station. – the Patient told police "I don't want to wake up in the morning". He stated he is currently feeling really down and depressed. – Patient stated he needs to talk to someone as he has hit rock bottom. – Patient currently living alone as his brother [name] is in [another town] working. – Patient has been thinking about ending his situation. 1. Mr Andreata notes that Constable Crossman made some factual errors – as to his age and that the alleged fraud was perpetrated by Mr Andreata's brother-in-law (and not as Constable Crossman had written, his brother). While no doubt frustrating, nothing turns on those errors. 2. After arriving at hospital, a whole new series of reports were prepared by hospital staff. The case description recorded in Mr Andreata's hospital records, when he was assessed after being taken from the police station to hospital is as follows: 54 yr old make presented to Campbelltown Police Station approx 5pm today after advice from Lifeline. Pt [Patient] phoned Lifeline today stating he has had enough of life, feels he has nothing to live for and doesn't want to wake up in the morning. Pt allegedly has been carrying a heavy burden for 30 + years and never spoken of it, states he has never sought any professional help or discussed with a counsellor, it has now totally consumed his life and he cannot go on. O/A [On Arrival] outside with two police, smoking a cigarette. Pt is calm, flat, softly spoken and appears depressed. He has good insight and his thought process is ordered. Pt denies harming himself in any way but does admit he wants to go to bed tonight and never wake up. Pt has no aggression, calm and co-operative and desperate for resolution. … 1. Mr Andreata was later further examined at the hospital and after such examination the hospital records note: Valentin waited patiently for review without issue Events revisited - has been ruminating over being scammed by his BIL and SIL >30 years ago - apparently BIL asked for $150,000 to start a bistro/nightclub however took the money and fled the country - over the years has made attempts to seek legal reproach with limited success Valentin gave a coherent account of events, and does not seem to be delusional in nature Over past few months due to ruminating on this more decided to call Lifeline Has had 2 calls with Lifeline support – during last session had mentioned fleeting TOSH/SI [Thoughts Of Self Harm / Suicidal Ideation] Lifeline suggested he report this to police – so he attended station to report the crime and after admitting to TOSH / passive SI was scheduled and brought to hospital. However he denied ever having any plans or intent to act Has never acted on these thoughts over the past 30 years Identified wanting to spend more time with his grandson … 1. The consultation notes concluded that: Did not present as acutely psychotic, depressed or manic Fleeting TOSH and passive suicidality without active plans or intent in context of psychosocial stressor However this has been chronic for past 30 years without imminent threat of self-harm/suicide Risked mitigated by spontaneity of help-seeking, good insight and future-focus on protective factors (such as children and grandchildren) Nil ground to detail under MHA 1. The hospital's plan for discharge of Mr Andreata was: 1. Schedule can be lifted 2. Can be discharged home today 3. Advised to follow-up with GP for low-grade depressive symptoms with psychological help as the focus. 4. CoHMET follow up please 5. Discussed option of Mirtazapine as possible antidepressant treatment, advised him to discuss with GP. 1. Mr Andreata did not follow the advice provided to him at discharge to follow-up with his general practitioner about obtaining psychological help or discussing antidepressant treatment. It is apparent from his submissions that Mr Andreata considered his trip to hospital as having been an over-reaction by police to his presentation at the police station and there was nothing wrong with him that required psychological or mental health treatment or monitoring. 2. On 19 June 2020, Mr Andreata received notification that his firearm licence had been revoked. 3. In early July 2020, Mr Andreata made a further report to police concerning the fraud. The police attending to him on that occasion also reported that Mr Andreata referred to being depressed by what had happened to him and again asked Mr Andreata if he had any thoughts of harming himself. The police on this occasion also contacted a family member of Mr Andreata who gave them sufficient assurance that it was unlikely he would harm himself and it seems the concerns of the police were assuaged by this. 4. At about the same time as making this second report, on 6 July 2020, Mr Andreata sought an internal review of the decision to revoke his firearms licence. The internal review was not finalised until more than a year later, after the commencement of Mr Andreata's application to this Tribunal. In his application to the Tribunal, Mr Andreata stated, in part, that: I do not have a mental health problem. When I was ordered by Police to be taken to Campbelltown Hospital by ambulance I did so and was released that night with no mental health problem or ongoing treatment. … I have 114 acres and need to protect my property from feral animals wild dogs, pigs and kangaroos. 1. In his submissions filed with the Tribunal on about 14 September 2021, Mr Andreata stated in part that the same property he has: A lot of vermin animals recking fences and attacking my vegie patch. 1. In the statement of reasons provided to Mr Andreata on 13 September 2021 provided pursuant to the Administrative Decisions Review Act, s 53, the Commissioner stated that: Reinstatement of your licence should be dependent on the expert opinion of a registered Psychologist/psychiatrist. 1. This matter was originally listed for hearing on 28 October 2021. On that date, the Tribunal stood the matter over to give Mr Andreata a further opportunity to obtain a recent psychiatric or mental health assessment in support of his contention that he should be granted, once again, his firearms licence. 2. At the hearing on 25 February 2022, Mr Andreata told the Tribunal that he had not obtained any further evidence due to the cost involved in obtaining a report and that he wished to proceed with the hearing without further delay. 3. In his written submissions served on 18 October 2021, Mr Andreata states that: I also held a firearm licence back in the 1990's and have never shot an animal yet. I love the wildlife on my property and don't have a problem with any animals but I do not know if an animal will attack me, my family and my pets. Some days I have kangaroos within 10 metres of me. They usually hop away so far. 1. And further he states: I need to protect my family and pets from other feral animals. Keep feral animals away and I don't need a firearm. 1. Lastly, Mr Andretta submitted; … all I'm trying to do is provide a safe place for my children and grandkids that's all. 1. Consistent with his written submissions, at hearing Mr Andreata made submissions to the following effect; 1. That having a firearm was just there for his peace of mind; 2. That he did not need or like firearms; and 3. His wish to be granted a firearms licence and hold a firearm arose from his desire to protect himself, his dogs and his grandchildren when they visited him. Consideration Genuine Reason 1. As noted above, Mr Andreata's former licence permitted him to possess and use firearms for reasons of recreational hunting/vermin control, such reasons being defined as "genuine reasons" for the purposes of the Firearms Act, s 12 and the table in that section. 2. It is not in dispute that Mr Andreata is currently the owner of rural land and therefore qualifies as having a genuine reason for the purposes of "recreational hunting and vermin control" as provided in the table in Firearms Act, s 12(4). As to the substance of such a genuine reason, Mr Andreata evidence was limited concerning his intended use of a firearm for the purpose of vermin control and he gave no evidence whatsoever that he was interested in recreational hunting – to the contrary, Mr Andreata states he has never shot an animal. Danger to Public Safety or to the Peace 1. Mr Andreata's submissions sought to minimise what had taken place when he presented to the police station at Campbelltown on 15 June 2020. However, I am satisfied having regard to Constable Crossman's evidence at hearing, the records she created on the day and the consistency of that material with the records prepared by the hospital staff, that Mr Andreata had expressed thoughts of self-harm that day and, consistent with the discharge summary from the hospital, I consider it likely that he was suffering from depressive symptoms that day for which ongoing treatment was recommended. 2. Despite what he states in his application to the Tribunal, ongoing treatment and assistance for depression was recommended on his discharged from hospital. Mr Andreata declined to seek any further treatment or assistance as recommended in the hospital discharge notes. He has also declined to obtain any medical evaluation of his mental health for these proceedings. 3. The failure to take the opportunity afforded to him by the Tribunal to obtain a report from a psychologist or psychiatrist assessing his current mental health, together with his minimisation of what he is reported to have said to police and medical staff on 15 June 2020 suggests that Mr Andreata may not have insight into his mental health needs. 4. In those circumstances, and in the absence of any recent report to establish what the current state of his mental health is, adopting the language of the Firearms Act, s 11(3) the Tribunal cannot be satisfied that in possessing a firearm, Mr Andreata could "be trusted to have possession of firearms without danger to public safety or to the peace". Personal Safety 1. A further matter arises in this case based on Mr Andreata's evidence and submissions at hearing. That is whether Mr Andreata intends to possess a firearm for reasons of personal protection or the protection of other persons. 2. As noted above, the Firearms Regulation 2017, r 12(2) specifically provides that the Commissioner may refuse to issue a firearms licence if satisfied that the applicant intends to possess or use the firearm for person protection or the protection of any other person or the protection of property. 3. Mr Andreata's submissions were candid; his desire to protect himself and his family members was stated repeatedly in writing and in his oral submissions. His written evidence concerning kangaroos approaching him had nothing to do with vermin control – rather it was directed to a submission about personal safety and not knowing what might befall him living on a rural property. Such evidence is consistent with his other statement that he does not know what would happen if an animal attacked him or his family. 4. Protection of persons and property is not a genuine reason for the purposes of the Firearms Act, s12. Further, and in accordance with the Firearms Regulation 2017, r 12(2) it is a basis on which a firearms licence may, and in this case should be, refused. Conclusion 1. Having regard to the principles and objects of the Firearms Act and the considerations set out above, I conclude that the Commissioner's decision to revoke his firearms licence is the correct and preferable one. Order 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: 24 May 2022