Con Plessas v Commissioner of Police, NSW Police [2004] NSWADT 30

CITATION: Con Plessas v Commissioner of Police, NSW Police [2004] NSWADT 30 DIVISION: General Division APPLICANT PARTIES: Con Plessas RESPONDENT Commissioner of Police, NSW Police FILE NUMBER: 033192 HEARING DATES: 23/09/2003 SUBMISSIONS CLOSED: 09/23/2003 DATE OF DECISION: 02/13/2004

BEFORE: Montgomery S - Judicial Member APPLICATION: Firearms Act - firearms licence - issue of licence or permit - Firearms licence - issue of licence or permit MATTER FOR DECISION: Principal matter LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Firearms Act 1996 CASES CITED: APPLICANT REPRESENTATION: M Allars, barrister RESPONDENT M Buchanan, solicitor ORDERS: 1. The decision of the Commissioner of Police, NSW Police Service to refuse the application by Mr. Con Plessas for the grant of a Category AB and collectors firearms licence under the Firearms Act 1996 is set aside. In substitution for that decision, the decision is made that Mr Con Plessas is to be issued with a Category AB and collectors firearms licence.

Background 1 These proceedings relate to a decision dated 16 June 2003 by a delegate of the Commissioner of Police, NSW Police Service ("the Commissioner") refusing an application by Mr Con Plessas for a Category AB and collectors firearms licence under the Firearms Act 1996 ("the Act"). Mr Plessas had applied for the licence on 26 February 2003 for the genuine reasons of sport/target shooting, recreational hunting/vermin control and firearm collecting. 2 Mr Plessas had previously held a Category AB and collectors firearms licence however that licence was revoked on 25 March 2002. That revocation followed a hearing in the Bankstown Local Court on 30 January 2002 in which Mr Plessas was found guilty of an offence of `Fire firearm in or near public place'. This finding was in relation to an incident that was said to have occurred near Peak Hill on Sunday 5 August 2001. A Police informant identified a particular vehicle and advised that the occupants of the vehicle had been shooting firearms from the roadway. Mr Plessas and his cousin Mr Peter Plessas were later stopped by police and questioned. The Court findings were the result of charges laid at that time. 3 No conviction was recorded pursuant to section 10 of the Crimes (Sentencing Procedures) Act 1999 and Mr Plessas entered into a twelve month bond to be of good behaviour. That bond had expired at the time Mr Plessas made the licence application. 4 By letter dated 13 May 2003 Mr Plessas wrote to the Commissioner's delegate and requested an internal review of the decision to refuse his application. That review was finalised on 16 June 2003 and the original decision was affirmed. 5 The Commissioner's delegate who made the decision gave detailed reasons for the decision and Mr. Plessas was notified of the outcome of the review and those reasons. On 15 July 2003 Mr. Plessas applied to this Tribunal for review of the Commissioner's decision. The matter was listed for hearing on 23 September 2003 along with an application for review of the refusal of a licence application by Mr Peter Plessas. 6 I have discussed the details of the 5 August 2001 incident in the reasons for decision in the application filed by Mr Peter Plessas ("the Peter Plessas decision"). In those reasons I have also provided a general discussion of the approach taken by the Tribunal to these proceedings and set out the applicable legislation. Mr Plessas' case 7 Ms. Allars appeared on Mr. Plessas' behalf and also provided written submissions in support of his case. The legal argument presented on Mr. Plessas' behalf is essentially the same as that presented on behalf of Mr Peter Plessas. I have set out that argument in detail in the Peter Plessas decision and it serves no purpose to repeat it here. 8 A statement from Mr Plessas dated 9 April 2002 was also put in evidence. In his statement Mr Plessas said: "1. I am 42 years of age. I am married with two (2) children. Maria is aged 13 and my son Harry is 11 years old. My wife and I are currently paying off our mortgage. I am a motor mechanic by trade but for the last four (4) years I have been a truck driver. I have had a firearms licence for about twenty five years. I love to go out hunting. My cousin Peter and I go out shooting about once a month. We shoot in a number of areas including Mudgee, Cobar, Nyngen and Wee Waa. We pay a fee to land owners to stay on their properties while we shoot. 2. I believe I have always been a responsible shooter. Up until August last year, I have never had any complaints from any land owners or anyone else about the way I have conducted my shooting activities. I always take extreme care where I shoot and also the maintenance of my firearms. I have a locked safe at home where I used to keep my firearms. Two (2) of my firearms were seized by the police and my other firearms are now at St Mary's Gun Club for safekeeping. 3. You are no doubt well aware of the circumstances of 5 August, 2001. Peter and I went to Peak Hill police station to explain what had happened. We were camped about 200 metres away from Coradgery Road which is a dirt road. There were no people or other animals that we could see. Unfortunately, we could not get onto a private property that weekend and so after a quiet BBQ, we took a few shots at some cans and bottles. We have come to extremely regret what happened that day. We always go to private properties to shoot and I take my firearms licence very seriously. 4. Along with Peter I have gone to the expense of retaining a legal representation from Peter Bouzanis & Associates. 5. I entered a plea of guilty to discharging a firearm in a public place, which was dealt with by Bankstown Local Court on 30 January, 2002. I was given a twelve month good behaviour bond. I have not done any shooting since 5 August, 2001. Both Peter and I really miss going out to shoot and we are extremely disappointed in our selves concerning the events which have lead up to the revocation of our licences. I can promise that this kind of thing will never happen again. 6.I have always understood that it is a privilege to own a firearms licence. I also did target shooting from time to time at Silverdale Gun Club which I also miss. 7. I have never been in trouble with the police before. I am 42 years of age and for the last 25 years, this has been my only mistake in respect to my firearms licence. Apart from this incident, I have no criminal convictions or have ever been in trouble with the police. I have learnt my lesson and paid the price of being taken to the Local Court and being made an example of. 8. I, as well Peter, take the good behaviour bond very seriously and we will do nothing both during the bond and after to breach the law again." 9 Ms. Allars submitted that there is material before the Tribunal that Mr. Plessas: (i) had been a licensed firearm owner for 25 years with no prior adverse attention when the incident occurred; (ii) has always been a law-abiding citizen; (iii) wrote to the Commissioner explaining that he had a lapse of thinking when the incident which gave rise to the charge occurred and did not realise that what he was doing was unlawful; (iv) had permission to shoot on properties at Mudgee and Wee Waa for the extermination of vermin, foxes and rabbits and was regarded as careful and responsible; and (v) provided character references that he was a responsible, trustworthy and honest work associate and member of the community. 10 Ms. Allars submitted that, for the reasons argued in the Peter Plessas matter, the Commissioner's decision was not the correct and preferable decision because there is not sufficient logical probative evidence to allow it to be reached. She further submitted that it is open to the Tribunal to conclude on the evidence that Mr. Plessas has made out a case that it is not contrary to the public interest for the purposes of s 11(7) of the Act for Mr. Plessas to be granted a licence and the Tribunal's discretion should be exercised to grant the licence sought. The Commissioner's case 11 Ms Buchanan appeared on behalf of the Commissioner. The Police Service's file was put in evidence and the Commissioner relied on the documents contained within that file. The Commissioner's case is essentially that outlined in the reasons provided following the internal review. There is no suggestion that Mr. Plessas is not a person of good character but rather there is a public interest issue to be considered. 12 In so far as they are relevant to these proceedings, the reasons given following the internal review and upon which the Commissioner relies provided: " D. REASONING PROCESS : The Firearms Act 1996 ('Act') sets up a scheme for licensing people to possess and use firearms. There are several provisions, which allow the Commissioner to refuse a licence. I have formed the view that the legislative provisions listed above are relevant to your particular case. Further, I have noted the abovementioned issues raised by you in support of your application. After fully and independently considering all relevant matters I make the following fresh determination. In 1996, the government enacted "tough new gun laws". One of the underlying principles of that law is to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage of firearms. Given this principal, I am of the opinion that your application for a firearms licence should be refused on the grounds that the issue of such a licence to you would be contrary to the public interest. Your previous licence was revoked on 25 March 2002, because of an incident that potentially threatened public safety. On 5 August 2001, police received two telephone complaints regarding suspicious activity by yourself and your cousin in a vehicle in the area. The witnesses stated that you were seen discharging your firearms from the roadway into paddocks. They stated that your vehicle was driven slowly along the road, and then you would alight from the vehicle, walk into a paddock and discharge your firearm. The witnesses indicated that this occurred on a number of occasions. I hold a number of concerns regarding this incident. When questioned by police, you and your cousin advised them that you had been planning to stay and shoot on a property in the Mudgee area but that you had decided to travel further west in the hope of locating an alternative site. Police advise that as far as they can ascertain, no enquires had been made to local property owners in this regard. Senior Constable Bloomfield stated in a report dated 24 April 2002, "as is fairly typical in matters such as this, I believe that this was a case of a number of individuals having firearms and a desire to use them, but no valid reason or place to shoot. Such people tend to get frustrated and neglect their responsibilities as firearms holders". I am in agreement with Senior Constable Bloomfield's opinion. Further, I am of the view that the public would also hold concerns that you and your cousin were driving, with firearms and ammunition in your vehicle, with no firm destination in mind, in the hope of locating a property on which you would be given permission to shoot. I hold further concerns regarding your cousin's advice, in a letter dated 2 April 2003, that when you could not find a property on which to shoot, it was decided that you would set up a barbecue area in a paddock approximately 200 metres from a dirt road. Having finished your barbecue, you set up some bottles and cans in the paddock and discharged your firearms towards them. Firstly, this action presumably involved you trespassing on private property, and secondly involved you threatening public safety. Notwithstanding your advice to police, at the time of the incident that you checked for both human and stock habitation before shooting in the paddock and that no damage was occasioned, I am of the opinion that your actions had the potential to compromise public safety. In addition, I am satisfied that the public would view your actions as a serious breach of the conditions upon which you were granted a firearms licence and were also in direct contradiction to the principles of the Act, in aiming to improve public safety. The two witnesses who notified police regarding your actions, stated that you and your cousin drove slowly along the road, alighted from the vehicle, then walked into a paddock and discharged your firearms. They further advise that this occurred not once but on a number of occasions. The fact that two separate witnesses telephoned police regarding your actions, indicates to me that this was not a matter of you taking a few shots at bottles and cans after a careful check of the paddock but a more random and casual perusal of a paddock prior to discharging your firearm from the roadway or the paddock. Police advise that the area in which you discharged your firearm is used extensively for sheep and cattle grazing. Further, Senior Constable Bloomfield advises that the locations where the offence took place, "whilst being close to civilisation in local terms, were probably far enough away that if caution were used, would probably not have caused damage". You were shooting from a public roadway onto private property in an area used extensively for livestock. In my opinion, it would be reasonable to assume that people tending to the livestock would also, on occasion, use the paddocks. In my view, persons frequenting the area for any reason should not have to be satisfied with `probably' when their safety is involved. 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. I have noted your prior good record, the references you have provided and the fact that the local magistrate saw fit not to record a conviction for this offence. However, the issue of public interest is operated in the absence of character defects with respect to exercising discretion adversely to an individual. I refer to Tolefoa v COP (2000) NSWADT 9, which provides: "(Public interest) is an inherently broad concept giving the appellant the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the parliament intended the public interest discretion to operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant objection. " I have also noted your advice that you "have always been a law abiding citizen" and a "respected member of the community". In addition, you submit that because the local court magistrate chose not to record a conviction against you, this would indicate that the offence was "not of a serious nature". I would argue, however, that any behaviour that potentially threatens public safety is of a serious nature. Further, the finding of guilt for this offence and the circumstances surrounding the incident prove that you do not always behave within the law or in the best interests of the community. As Such, I am not satisfied that you have changed your casual attitude towards firearms ownership or that you could now be trusted by the public to behave in a more careful or responsible manner. I note your desire to hold a firearms licence to enable you to provide your son with the same fond memories of hunting with his father that you have. However, in the Second Reading speech on 25 June 1996 relating to the Act, The Hon Mr J W Shaw (Attorney General) said, (at 3557): "The legislation puts the public's right to safety before the privilege of gun ownership". Further, the desire for you to hold a firearms licence is subordinate to the need to ensure public safety; Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 at 681, provides: "The purpose of the reference to public interest' is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the `scope and purpose' of the legislation. " In my opinion, when you were previously the holder of a firearms licence, you showed no regard for the conditions upon which your licence was issued or for the principles and objectives of the Act, which is to confirm that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety. As such, I am not satisfied that should a licence again be issued to you, the conditions of the licence would be upheld with any more diligence than previously shown. I have weighed your prior good record and your stated desire to hold a firearms licence for recreational purposes, against the circumstances of the offence for which you were found guilty and the `public safety' scope of the Act. Given that the ADT have held that the Act is to be interpreted narrowly and that public interest in the context of Clause 17 of the Firearms (General) Regulations 1997 requires paramount consideration be given to public safety, I have decided against varying the decision to refuse your application for a firearms licence. E. DECISION: The Commissioner's decision to refuse your category AB and collectors firearms licence is to stand." 13 Ms Buchanan also presented oral submissions as outlined in the Peter Plessas decision. I do not propose to repeat them here. Findings 14 In this application, I have considered all of the evidence and the oral argument presented before the Tribunal. In particular I have had regard to the following issues: That Mr. Plessas has been a licensed firearm owner for over 25 years with no prior adverse attention; That Mr. Plessas asserts that all of his firearms were registered and kept in a locked safe as approved by police; That Mr. Plessas asserts that he has always been a law abiding citizen and respected member of the community, believing in giving your fellow man a fair go. A number of testimonials provided on Mr. Plessas' behalf support this assertion. That it is probable that on 5 August 2001 Mr Plessas did not have permission to shoot in the area in which he discharged his firearm; That on 5 August 2001 the area where Mr Plessas discharged his firearm was used extensively for the grazing of sheep and cattle; That on 30 January 2002 in the Bankstown Local Court Mr Plessas was found guilty of `Fire firearm in or near public place'. No conviction was recorded pursuant to section 10 of the Crimes (Sentencing Procedures) Act 1999 and Mr Plessas entered into a twelve month bond to be of good behaviour; That Mr Plessas' firearms licence was revoked on 25 March 2002; That Mr Plessas' good behaviour bond expired on 30 January 2003; That Mr Plessas used to go hunting with his father when he lived in the country and he has fond memories of father and son bonding. Mr Plessas' son is now at an age that he can savour the same memories as Mr Plessas had with his father; That Mr Plessas' father taught him how to handle a firearm over 30 years ago, with regard to safety being of the utmost importance; That Mr Plessas asserted that he had a lapse of thinking at the time of the offence; That in regard to the offence in August 2001, Mr Plessas had travelled a long way to do some recreational shooting on a property, but the owner was not at home. He then proceeded to drive around and try to get onto other properties. He was not successful so he decided to have a BBQ which he set up about 200 metres from a dirt road in an open field a few kilometres from anything. He decided to take a few shots at some empty bottles and cans, shooting away from the dirt road. There were no farms, houses or animals around, and Mr Plessas considered that there was no-one in any danger otherwise he would not have discharged his firearm; That Mr Plessas extremely regrets his actions of August 2001 and wishes to have the opportunity again to be able to continue this recreational activity; That Mr Plessas gives his complete assurance that no kind of incident will ever happen again. 15 Having weighed the evidence in this matter I have formed the same conclusion as I reached in the Peter Plessas decision. In the circumstances, I am satisfied that sufficient time has passed since the offence of 5 August 2001, without further incident, so that the public could be comfortable with Mr Plessas again holding a firearms licence. In my view, the offences for which Mr Plessas was found guilty no longer constitute a sufficient justification for refusing a firearms licence today. The licence that Mr Plessas has sought should be granted. Accordingly, it is appropriate in the circumstances that the Commissioner's decision is set aside. Orders The decision of the Commissioner of Police, NSW Police Service to refuse the application by Mr Con Plessas for the grant of a Category AB and collectors firearms licence under the Firearms Act 1996 is set aside. In substitution for that decision, the decision is made that Mr Con Plessas is to be issued with a Category AB and collectors firearms licence.