CITATION: Donaldson v Commissioner of Police, NSW Police [2007] NSWADT 137 DIVISION: General Division APPLICANT PARTIES: Wayne James Donaldson RESPONDENT Commissioner of Police, NSW Police FILE NUMBER: 063358 HEARING DATES: 14 December 2006 SUBMISSIONS CLOSED: 31 January 2007 DATE OF DECISION: 22 June 2007 BEFORE: Montgomery S - Judicial Member CATCHWORDS: Firearms Act - firearms licence - revocation of licence or permit - 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 Bevan v Commissioner of Police [2004] NSWADT 1 CASES CITED: May v Commissioner of Police, New South Wales Police Service [2001] NSWADT 82 Osborne v Commissioner of Police, New South Wales Police Service (GD) [2000] NSWADTAP 10 APPLICANT E Magni, solicitor REPRESENTATION: RESPONDENT W Pisani, solicitor ORDERS: 1. The decision of the Commissioner of Police, New South Wales Police to refuse Mr Donaldson's licence application is set aside.; 2. I remit the application for consideration by the Commissioner subject to the recommendation that the licence be granted if the Commissioner is satisfied that Mr Donaldson's firearm storage facilities are appropriate for this category of licence. REASONS FOR DECISION Background 1 Mr Donaldson was formerly a security guard and the proprietor of Macleay A One Security Co. Pty Ltd. He managed eight security officers in that business. He held a firearm licence under the Firearms Act 1996 ("the Act") between 1996 and 2003. His licence expired in 2003 and his application for renewal was refused. He subsequently reapplied for the licence and the Commissioner again refused of his application. The refusal relates to Mr Donaldson's failure to store his firearms safely. 2 In December 2004 Mr Donaldson appeared at Kempsey Local Court in relation to a charge of 'Not keep firearm safely not prohibited firearm/pistol'. The matter was proved and dismissed under the provision of section 10 of the Crimes (Sentencing Procedure) Act 1999. This was confirmed on appeal to the District Court. 3 The charge related to the storage of his firearms in a gun cabinet that did not comply with the legislative requirements. There is disagreement between the parties regarding the actual construction of the gun cabinet. It is common ground that it was a wooden cabinet but Mr Donaldson disputes the police assertions as to the inadequacy of the door to the cabinet or that the door could be easily removed. Nevertheless he has since purchased an approved metal cabinet and has secured it in his pre-existing wooden cabinet with a stronger door. He contends that this is far stronger and more secure than the metal cabinet. 4 Mr Donaldson was charged following a firearms audit that police conducted on his premises in March 2004. This audit related to the storage of firearms in a wooden cupboard near the entrance foyer of the premises. The door to the cupboard housing the firearms was made from wooden palings. The police facts sheet asserts that there was a gap in the palings that was approximately 6cm wide. The gap was situated on the hinged side of the door. Mr Donaldson disputes the size of the gap. The door was attached to the doorframe by two metal hinges secured by Tech screws. Two pad bolts that were attached top and bottom locked the door. Tech screws secured the pad bolts and both pad bolts were padlocked. The police facts sheet also asserts that all Tech screws could easily be removed by using a spanner, or an 8-10 ml socket. Mr Donaldson disputes the assertion that the door could be easily removed and also disputes the assertion that someone could reach into the cupboard and remove the firearm. 5 Photographs that were tendered in the Court proceedings are in evidence before the Tribunal. It is not possible to determine the accuracy of the assertions made in the facts sheet from those photographs. The evidence is that the non-compliant door has been replaced. 6 The police facts sheet also asserts that Mr Donaldson informed police that his home was fitted with a "back to base" alarm system however the alarm company informed police that the alarm has not being monitored for approximately eighteen months. 7 Mr Donaldson has applied to this Tribunal for an external review of the Commissioner's decision of to refuse his licence application. Applicable legislation 8 Section 11(7) of the Act states that the Commissioner may refuse to issue a licence if he considers that issue of the licence would be contrary to the public interest. Mr Donaldson's case 9 Mr Donaldson relies on his own evidence. He says that he has a need for a firearm in order to humanely put down cattle and to control vermin on his property. He does not dispute that the charge of not keeping his firearms safely was proved. He is aware that this finding will prevent him from holding a security licence for a period of five years. 10 He gave evidence in regard to the circumstances of the charge brought against him and the storage facilities. His evidence was that he replaced the previous door as soon as the police had advised him that his storage facilities did not comply with the legislative requirements. He also gave evidence in regard to the previous door and asserts that it would have been extremely difficult to break into the cupboard. He said that even if someone were able to get their hand into the cupboard they would not have been able to reach the firearms. 11 Mr Donaldson submits that a chainsaw would have been needed to get into his storage cupboard whereas an angle grinder would be sufficient to get into the metal safe. In any event, he says that his current storage facility is better than the standard required by the legislation. 12 Mr Donaldson stated that he had had an arrangement with a local company that was servicing his back to base alarm for free because he referred a lot of customers to him. The relationship between Mr Donaldson and the back to base alarm service provider had deteriorated and he had not been told that this servicing was no longer being provided. He also had dogs guarding the property and ensured that someone was at the premises at all times. 13 Mr Donaldson submits that the likelihood of his re-offending is negligible. Accordingly, his licence and permit should be reinstated. The Commissioner's case 14 The Commissioner relies on a brief of evidence that sets out the background to the charge and the Courts' findings. He contends that because of Mr Donaldson's breach of the legislation the Tribunal should conclude that it is not in the public interest for him to hold a firearms licence. 15 The Commissioner also relies on the evidence of Sgt Ronald Mudford who appeared and gave evidence at the hearing. Sgt Mudford had prepared the facts statement relating to the charge brought against Mr Donaldson and his evidence was consistent with that statement. The Commissioner's submissions 16 Mr Pisani adopts the reasoning provided as a basis for the internal review decision. He refers to the legislative policy behind the storage provisions set out in the Act and to a number of authorities that have considered those provisions. He submits that the discretion to grant a licence must be exercised keeping in mind the nature of the conduct and the principles and objectives of the Act. Section 3(1)(a) of the Act clearly states that the primary objective is public safety. The possession and use of a firearm is a privilege. That privilege is conditional on the overriding need to ensure public safety. Section 3(1)(b) relates to the underlying principle of improving public safety by imposing strict controls on the possession and use of firearms. 17 Mr Pisani points to a number of Tribunal decisions that make it clear that the Tribunal has been consistent in the view that failure to store firearms safely is extremely serious. 18 Mr Pisani submitted that it is in the public interest to refuse Mr Donaldson's application because of his conduct. He says that it is not relevant whether or not Mr Donaldson was convicted of any offences. Mr Pisani points to the discussion in Osborne v Commissioner of Police, New South Wales Police Service (GD) [2000] NSWADTAP 10 of the different roles played by the Courts and the Tribunal. The Court's role is to determine whether a charge is proven and to consider what penalty is applicable in light of any mitigating factors. The Tribunal is dealing with the licensing aspect and must consider the public interest. Any breach of the applicable legislation is a relevant consideration regardless of any penalty that may have been imposed. 19 Mr Pisani submits that contraventions in respect of failing to meet the safe storage requirements as set out under Part 4 of the Act are fundamental in their nature in that they are contraventions which go to the crux of the principles and objectives of the Act. In Bevan v The Commissioner of Police [2004] NSWADT 1 Higgins JM stated at paragraph 26: 26 ... contraventions in respect of failing to meet the safe storage requirements as set out under Part 4 of the Act are fundamental in their nature in that they are contraventions, which go to the crux of the principles and objectives of the Act. Parliament has emphasised the fundamental nature of such contraventions, if proven and a conviction is recorded, by prohibiting the Commissioner from issuing a firearms licence to the convicted person for 10 years after the conviction was entered into (see s. 11(5)(a) of the Act and cl 5(a) of the Firearms (General) Regulation 1997). Similarly, where a licence holder is convicted of such a contravention the Commissioner is required to revoke the licence of that licence holder (s. 24(1A) of the Act). However, where a contravention has been proven without a conviction having been recorded, Parliament has given the Commissioner a discretion as to whether to revoke a licence. In the opinion of the Tribunal, this discretion does not alter the fundamental nature of a contravention, particularly where a court has made a finding of guilt. In the opinion of the Tribunal, in those circumstances, on a proper construction of the Act, Parliament has given a clear indication that the Commissioner is to revoke or refuse a licence, unless the Commissioner is satisfied that the contravention was merely a technical breach, the conduct posed no risk to public safety and there was no evidence that the licence holder or applicant for a licence would in future engage in conduct that posed a risk to public safety (see s3(1)(1)(a) of the Act). 20 Mr Pisani submits that Mr Donaldson's breach is not technical but is of a fundamental nature and placed public safety in danger. He referred to views expressed by Judicial Member Lees in May v Commissioner of Police, New South Wales Police Service [2001] NSWADT 82 where she stated at paragraph 54: 54 There is no doubt that Mr May has a genuine reason for wanting to be licensed to possess and use firearms. I accept, given the supportive statements and references provided for Mr May, that he has positive and valuable personal qualities and that he has been a safe and responsible firearms user in the past. These factors however are not sufficient to displace or outweigh the behaviour for which he was convicted or the possibility that such behaviour could happen again. Mr May's evidence was not sufficiently persuasive to enable the conclusion that such an incident could not possibly happen, or possibly happen again. Such a possibility is clearly contrary to the public interest. 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. 21 The 'interest' under consideration is the interest of the public as distinct from the interest of an individual or individuals. Mr Pisani argues that the community could not be confident that public safety would not be jeopardised should Mr Donaldson be given the privilege of holding a firearms licence and therefore the decisions under review should be affirmed. Findings and Decision 22 The Tribunal's task is to determine whether the Commissioner's decision is the correct and preferred decision having regard to the material before it including the relevant facts and the applicable law: section 63, Administrative Decisions Tribunal Act 1997. 23 I have considered all the material that has been provided by the parties. The ultimate issue is whether, having regard to all the relevant circumstances, the Commissioner was correct in exercising his discretion to revoke Mr Donaldson's firearms licence and permit. There are a number of factors relevant to this matter. These include (a) the public safety considerations; (b) the extent of Mr Donaldson's breaches of the legislation; (c) Mr Donaldson's knowledge of the relevant legislative requirements; (d) Mr Donaldson's commitment to never re-offending and the likelihood of future breaches of the legislation; (f) Mr Donaldson's practical needs for the licence; and (g) the period that has passed since the breaches and Mr Donaldson's otherwise good character. 24 Responsibilities extended to licence and permit holders are of a serious nature and the holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them. In the circumstances of this case the Commissioner contends that I could not be satisfied that Mr Donaldson has sufficient understanding and appreciation of the obligations of a licence holder to be confident that he would comply with those obligations in the future. 25 I have no concerns about Mr Donaldson's character. However, on the evidence before me I am satisfied that the Commissioner's assertions with respect to the storage of Mr Donaldson firearms are established. I accept that the Mr Donaldson did not have appropriate storage facilities for his firearms and that this lead to the Local Court finding. I am also of the view that while Mr Donaldson understood that serious obligations attached to the holding of the licence, it is clear from the evidence that he misunderstood what was required to meet those obligations. 26 In my opinion, the Commissioner was correct in taking action against Mr Donaldson's licence following the audit that lead to the charge against him. However, I need to decide the matter on the basis of the material before me and I have the benefit of information that was not available to the Commissioner at that time. However, over three years have passed since the breach. I am satisfied that Mr Donaldson now possesses the necessary understanding of the statutory obligations that are placed on a licence holder. I accept that he has learnt from his experiences and that he has made a commitment to never re-offending. I am also satisfied that he is committed to ensuring that his firearm storage facilities satisfy the legislative requirements. In the circumstances I am satisfied that the public could now be comfortable with Mr Donaldson again holding a firearms licence. 27 On the totality of the evidence I am satisfied that there is minimal risk to the public should Mr Donaldson have his licence reinstated. Accordingly, it is my view that the correct and preferable decision is that the decision under review be set aside. Order 1. The decision of the Commissioner of Police, New South Wales Police to refuse Mr Donaldson's licence application is set aside. 2. I remit the application for consideration by the Commissioner subject to the recommendation that the licence be granted if the Commissioner is satisfied that Mr Donaldson's firearm storage facilities are appropriate for this category of licence. 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.