WS v Commissioner of Police, NSW Police [2007] NSWADT 71

CITATION: WS v Commissioner of Police, NSW Police [2007] NSWADT 71

DIVISION: General Division

APPLICANT PARTIES: WS RESPONDENT Commissioner of Police, NSW Police Service

FILE NUMBER: 063151

HEARING DATES: 27 July 2006

SUBMISSIONS CLOSED: 27 July 2006

EXTEMPORE DECISION DATE: 27 July 2006

DATE OF DECISION: 5 April 2007

BEFORE: Grant Y - Judicial Member

CATCHWORDS: Firearms licence - revocation of licence or permit

MATTER FOR DECISION: Principal matter

Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Firearms (General) Regulation 1997 Firearms Act 1996

Albury v Commissioner of Police [2005] NSW ADT 266 Maloney v Commissioner of Police, NSW Police, 22 November 2004 Unreported CASES CITED: Cumano v Commissioner of Police, NSW Police [2001] NSWADT 50 Australian Broadcasting Tribunal v Bond (1994) ALR 11 Botros v Commissioner of Police, NSW Police Service [2000] NSW ADT 6

In person REPRESENTATION: W Pisani, agent

ORDERS: The Commissioner's decision to revoke the Applicant's firearms license is affirmed.

REASONS FOR DECISION Introduction 1 WS ('the Applicant') has held a firearms license since 1981. The license was revoked in 2006 and the decision to revoke his license was affirmed on an internal review. He has now applied to the Tribunal for an external review of the determination. The matter was heard on 27 July 2006. 2 Following the hearing of this application I confirmed the Commissioner's determination to revoke WS's license. WS has requested written reasons for my decision. These reasons are provided in response to that request. Background 3 The Applicant owns an isolated rural property near Bega, NSW. The property is surrounded by State Forest and is home to feral animals. From time to time WS has a need to control the feral animals and to put down animals in distress. His firearms license was issued for the genuine reasons of target shooting and recreational hunting/vermin control. 4 Police obtained a search warrant in relation to WS's premises to allow them to search for cannabis plants. The police searched the premises and found evidence of 166 plants in the process of cultivation. WS stated that he grew them for his personal use. 5 WS was convicted in the Bega Local Court of possession cannabis and was given a s.9 12 month good behaviour bond by way of sentence. WS was not convicted of cultivation of cannabis. His firearms license was revoked as a consequence of this conviction. Legislative scheme 6 The Firearms Act, 1996 ('the Act') sets up a scheme for licensing people to possess and use firearms. Section 24 contains provisions relating to the revocation of licenses. Section 24(2) of the Act, so far as it is relevant, provides that: "A license may be revoked: A. for any reason for which the licensee would be required to be refused a license of the same kind, or … (c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a license, (d) for any other reason described by the Regulation." 7 Section 11(5)(b) of the Act states that a license must not be issued to a person who has, within the period of ten years before the application for the license was made, been convicted in New South Wales or elsewhere of an offence prescribed by the Regulations, whether or not the offence is an offence under New South Wales law. 8 Section 11(7) of the Act states that: "The Commissioner of Police may refuse to reissue a license if the Commissioner considers that the issue of the license would be contrary to public interest." 9 Clause 5(b) of the Firearms (General) Regulation, 1997 ("the Regulation") provides: "Five offences that disqualify applicants. For the purposes of Section 11(5)(b) and 29(3)(b) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales:- … (b) an offence in respect of a prohibited plant or drug committed under:- (i) the law of any Australian jurisdiction, or (ii) the law of any overseas jurisdiction (being in the sense that, had it been committed in Australia, would be an offence under the law of an Australian jurisdiction)." 10 Clause 17 of the Regulation provides: "In accordance with Section 24(2)(d) of the Act, a license may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is issued to continue to hold it." EVIDENCE AND FINDINGS OF FACT The Commissioner's Case 11 Mr Pisani for the Commissioner relied on the reason contained in the reasons for the internal review determination. The Commissioner points to two reasons for revoking WS's firearms license those being:- (i) The offence for which WS was convicted is prescribed by the Regulation. Persons convicted of a prescribed offence are precluded from holding a license for a period of ten years from the date of the conviction. Mr Pisani argued that the Tribunal has previously held that the inference drawn from this provision is that a conviction for a prescribed offence operates to remove the privilege to have a firearms license as public safety is placed at risk. Further, Mr Pisani submitted that the Tribunal has held that although the Commissioner has a discretion in this regard, where the conviction occurred after the license was issued, it would be an anomaly to allow a licensee to retain a license when someone else with the same conviction would be refused one. The Commissioner's representative further submitted that the discretion should only be exercised in a way not to revoke the license in special or exceptional circumstances and he stated that it was the Commissioner's view that there were no such special circumstances in this case. (ii) The second reason given by the Commissioner for affirming the revocation of WS's firearm license was that he was not a fit and proper person and this was demonstrated by the fact that he had misrepresented his circumstances when he completed his application and failed to disclose that he had previously been refused a license. Mr Pisani submitted that for WS to complete an application that he knew to be false in its failure to acknowledge that he had been previously refused a license was the act of someone who could not be said to be a fit and proper person to hold a firearm license. WS's Case 12 In respect of the Commissioner's first reason for revoking the Applicant's license WS submitted that there were special circumstances surrounding his conviction for possession of cannabis. The special circumstances being that he was dependent upon cannabis as a medication for an acute illness and WS provided the Tribunal with a letter from his doctor acknowledging that WS used cannabis as a medication to assist him with the management of his illness. 13 WS further stated in support of his application the fact that he had the use of a firearm without blemish 1981. WS further stated by way of the special or exceptional circumstance justifying the Tribunal's exercise of its discretion in respect of a revocation of a license the fact that he served the public interest in controlling vermin in his area. 14 In respect of the Commissioner's second reason for revoking the Applicant's license on the grounds that he was not a fit and proper person. The Applicant sought to draw a distinction between a refusal and a cancellation stating that while he had been refused a license that was separate and distinct from a cancellation of a license and accordingly he had not misrepresented the situation when completing his application. He further gave evidence of the situation of extremis in which he found himself at the time at which he was previously convicted in his absence stating that:- "I don't think it's fair to say that I chose to leave the site. If you or any of your children or any of the people in this room were subject to that kind of treatment, you would run for your life. I thought I was rather brave to stay as long as I did to try to help those people." 15 The Applicant was here referring to the fact that he had absconded while on bail after signing the bail form . WS further stated that he didn't understand the legal process and had not appreciated that he had been found guilty of this offence in his absence. Accordingly it was the Applicant's submission that these extenuating circumstances suggested that he was wrongly convicted of this offence and that to his mind he was not aware that a formal conviction had been recorded against him. FINDINGS Fit and Proper Person 16 The second ground on which the Commissioner may revoke a license is if it is of the opinion that the licensee is no longer a fit and proper person to hold a license. 17 The assessment of whether a person is a 'fit and proper person' to hold a firearms license, was discussed in Australian Broadcasting Tribunal v Bond (1994) ALR 11 Toohey and Gaudron JJ at 65 stated that: "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 context, 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 grant a finding that a person is not fit and proper to undertake the activities in question." 18 The fact that WS failed to disclose that he had previously been refused a firearms license when he had received notice of such a refusal and in evidence admitted having received such a notice demonstrates that he is willing to compromise the truth in pursuit of obtaining a firearms license. Irrespective of the difficult circumstances in which WS left the site of the offence I do not accept his submissions concerning his unawareness of a previous conviction in the light of his admission that he had signed a bail form which particularised the offence with which he was charged and his obligation to attend court in respect of the hearing of that matter. I accept that WS had a sufficient appreciation of the circumstances of the bail notice to understand that if he absconded on bail and failed to attend court there was every likelihood that conviction would be recorded against him in his absence in respect of the matter with which he was charged. 19 Whilst I am sympathetic to the particular circumstances in which the Applicant found himself at the time at which he was charged with the offence the Tribunal can only proceed on the evidence that is before it in terms of the convictions which have been recorded against the Applicant and of which it has formal notice. 20 In addition the Applicant has admitted that he received a notice of refusal and while he submits that his license had not been formally cancelled he nevertheless accepts that he had received a notice of refusal. 21 Furthermore WS has given evidence before the Tribunal that his need to obtain medicinal relief from his illness by the use of cannabis is the paramount consideration and that any adverse consequences by way of convictions for possession of cannabis are subordinate. Accordingly for the reasons set out above I am of the opinion that at this point in time WS is not a fit and proper person to hold a license. 22 In respect of the Commissioner's first reason for revoking the Applicant's license, namely that he had been convicted for a prescribed offence which pursuant to Clause 5(b) of the Regulation disqualifies Applicants from being issued with a firearms license within ten years from the date of the said conviction. 23 The role of the Tribunal is to determine, having regard to the relevant facts and the applicable law, whether the Commissioner's decision is the correct preferred decision: Section 63 Administrative Decisions Tribunal Act, 1997. WS has not disputed his conviction for the offence concerning possession of cannabis imposed by the Bega Local Court. In this case the grounds relied on by the Commissioner to revoke WS's license are discretionary. That is, the grounds, if established give the Commissioner a discretion as to whether he should or should not revoke the license. However, the provisions in sub-section 24(2) of the Act do not give any guidance as to how that discretion should be exercised in each individual case. 24 In Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at para [23] the Tribunal's Deputy President stated that the discretion should be exercised in a way, which promotes the principles and objects of the Act. This approach has been adopted in numerous decisions of this Tribunal. 25 Parliament has also identified certain offences, which disqualify a person from being issued with a license. That is, when considering an application for a firearms license from an Applicant who has been convicted of a prescribed offence the Commissioner is given no discretion he must refuse the license application. WS was convicted of a prescribed offence (Clause 5(b) of the Regulation) and this means that when WS would be required to reapply for his firearms license the Commissioner would have no alternative but to refuse a renewal of his license. 26 In Botros v Commissioner of Police, NSW Police Service [2000] NSW ADT 6 Skinner JM stated: "22. In this case if the applicant had committed the offence before applying for the license granted on 4 March 1999 he would not have granted that license. The legislature has seen fit to ensure that that result would have been mandatory, and is mandatory for ten years from the date of the conviction. 23. It would be anomalous if despite the committing of a prescribed offence nearly five weeks after the grant of the license, the applicant were to retain his five year license. 24. Conceivably some circumstances could justify such an