Nohra v Commissioner of Police, NSW Police Service [2002] NSWADT 239

CITATION: Nohra v Commissioner of Police, NSW Police Service [2002] NSWADT 239 DIVISION: General Division APPLICANT Anthony Nohra PARTIES: RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 023139 HEARING DATES: 14/08/02 SUBMISSIONS CLOSED: 08/14/2002 DATE OF DECISION: 11/21/2002

BEFORE: Montgomery S - Judicial Member APPLICATION: Firearms Act - firearms licence - revocation of licence or permit - Firearms licence - revocation of licence or permit MATTER FOR DECISION: Principal matter Firearms (General) Regulation 1997 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Firearms Act 1996 Osborne v The Commissioner of Police [2000] NSW ADT AP 10 Tolefoa v COP (2000) NSWADT 9 Nohra v Commissioner of Police, New South Wales Police Service [2001] NSWADT 15 CASES CITED: Blair v Curran (1939) 62 CLR 464 Lambidis v Commissioner of Police (1995) 37 NSWLR 320 Mouwad -v- Commissioner, New South Wales Police Service [2002] NSWADT 226 Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11 REPRESENTATION: T Shulze, counsel D Paterson, solicitor ORDERS: 1. The Commissioner's decision to revoke Mr Nohra's Category AB firearms licence is affirmed.

Background 1 These proceedings relate to a decision by the Commissioner of Police, New South Wales Police Service ("the Commissioner") to revoke the firearms licence held by Mr Anthony Nohra. 2 Mr Nohra was issued with a Category AB firearms licence on 13 December 2001. The Commissioner subsequently concluded that the licence had been issued in error and he on 14 February 2002 he decided to revoke the licence. On 11 March 2002 Mr Nohra applied for an internal review of the decision to revoke the licence. The Internal review was undertaken by a delegate of the Commissioner and was finalised on 12 April 2002. The decision was taken that the Commissioner's decision to revoke Mr Nohra's category AB firearms licence is to stand. The Commissioner's delegate gave detailed reasons for the decision and Mr Nohra was notified of the outcome of the review and those reasons. 3 In so far as they are relevant to these proceedings, those reasons 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 revoke 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 and your solicitor 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."1 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.2 In considering your request for an internal review I have given careful consideration to your submissions as outlined in your Statutory Declaration and to those submitted by your solicitor, Mr Morgan. I have then weighed those submissions against the principles and objectives of the Act (as outlined above) together with the reasons of the ADT (handed down on 7 February 2001) in affirming the Commissioner's refusal of your previous application for a firearms licence. On balance, I am of the opinion that in the time that has passed since the ADT affirmed the refusal of your application for a firearms licence in February of 2001, your circumstances throughout that time have not greatly altered to the extent that would now entrust the Commissioner and the general community alike with confidence with respect to you as a licensee. I hold this view, despite the fact that you have not come to adverse notice since the time of your convictions and despite the fact that you are a businessman and family man, fathering two children. This is because the fact remains that the nature of the offence in which you participated, whilst occurring 10 years ago, was gravely serious and, which involved threatening members of the public with a firearm over a drug related incident. Not a Fit and Proper Person In considering an individual's right to be granted a licence under the Act I have formed the view that any decision should be made on the basis that the legislation imposes a duty upon the Commissioner not to issue a licence unless he is satisfied that the applicant is a fit and proper person and can be trusted to possess and use firearms.3 Your participation in the abovementioned offences remains to raise concern about your fitness as an individual to be entrusted with the privilege of possessing and using firearms safely. I note that you make mention of the fact that your involvement in the offences was by way of common purpose rather than as a primary offender. This, in my view, is irrelevant. It seems to me that you willingly participated in an offence whereby a firearm was produced to threaten the life of a member of the public. I note that in sentencing you for the offences the presiding Judge imposed a significant fine and a lengthy community service. Moreover, and importantly, the Deputy President of the ADT in determining the Commissioner's refusal of your previous application was satisfied that despite the role you played when committing these offences and the fact that these offences occurred over 10 years ago the circumstances of the offences remained to raise serious questions about whether you could be trusted to use firearms safely.4 Regarding the issue of 'fit and proper' 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. This list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.5 When considering this view, I am satisfied that improper conduct has occurred and it would not be unreasonable to believe that the general community could not be confident of such conduct reoccurring. His Honour, Justice Walters states that in his view "any previous breaches of the law, and any propensity towards offending against the law must be regarded as of crucial importance.''6 In the Appeal Panel matter ofOsborne v The Commissioner of Police [2000] NSW ADT AP 10 the Tribunal made a general comment in relation to the scope and intention of the act and the proliferation of firearms in the community generally: