Lynch v Commissioner of Police, NSW Police [2006] NSWADT 80

CITATION: Lynch v Commissioner of Police, NSW Police [2006] NSWADT 80

DIVISION: General Division

APPLICANT PARTIES: Kerry Keith Lynch RESPONDENT Commissioner of Police, NSW Police

FILE NUMBER: 053364

HEARING DATES: 06/03/06

SUBMISSIONS CLOSED: 03/06/2006

DATE OF DECISION: 03/20/2006

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

LEGISLATION CITED : Firearms Act 1996

Bevan v The Commissioner of Police [2004] NSW ADT 1 Bottomley v Commissioner of Police, New South Wales Police [2005] NSWADT 2 CASES CITED: Dewar v Commissioner of Police, New South Wales Police Service [2003] NSWADT 115 Rosenboom v Commissioner of Police, New South Wales Police [2006] NSWADT 10 Vella -v- Commissioner of Police, NSW Police Service [2003] NSWADT 91Ward v Commissioner of Police [2000] NSWADT 28 Wiltshire v The Commissioner of Police [2005] NSWADT 75

APPLICANT C Jackson, Barrister REPRESENTATION: RESPONDENT W Pisani, agent

ORDERS: The decision of the Commissioner of Police, New South Wales Police Service to revoke Mr. Lynch's firearms licence is affirmed.

REASONS FOR DECISION 1 Mr Lynch is a civil engineer but also operates farming properties in the Nowra area. He has held firearms licences for many years. He has held and used firearms in relation to his operations as a primary producer. These proceedings relate to a decision by the Commissioner's delegate to revoke his Category AB firearms licence. 2 The decision to revoke Mr Lynch's licence followed an incident between his wife and daughter-in-law and Police attendance at his residence. The Police seized a number of Mr Lynch's firearms and a number of breaches of the Firearms Act 1996 ("the Act") were detected. 3 When Police attended Mr Lynch's premises and asked him to surrender his firearms, Mr Lynch showed them his firearms safe in which three firearms were correctly stored. He then located two loaded shotguns in the master bedroom. One of those shotguns was unregistered. A further loaded rifle with a scope, together with an ammunition belt with 21 rounds of ammunition, was located under the curtain in the bedroom. A further unregistered firearm and a large amount of ammunition was located in the master bedroom's walk-in wardrobe. In Mr Lynch's office/workshop were another loaded rifle and next to it a number of boxes of unsecured ammunition and an unregistered double barrel shotgun in pieces. 4 Mr Lynch appeared before Nowra Local Court on 4 May 2005 on charges relating to the possession of unregistered firearms and, not keeping firearms safely. He pleaded guilty to the charges. The Magistrate found the offences proven but chose to not record a conviction pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999. Mr Lynch was placed on a bond to be of good behaviour for a period of two years, however he successfully appealed against that aspect of the sentence and the Nowra District Court quashed the good behaviour bond. The Court ordered that Mr Lynch's registered firearms be returned to an authorised firearms licence holder. 5 That decision to revoke Mr Lynch's licence was affirmed on an internal review and Mr Lynch has applied to the Tribunal for external review. The Commissioner's case 6 The Commissioner relies on a brief of evidence that sets out the background to the charges and the Courts' findings. 7 The Commissioner contends that because of the extent of Mr Lynch's breaches of the legislation and the risks they posed, the Tribunal should conclude that it is not in the public interest for him to continue to hold a firearms licence. 8 Mr Pisani adopts the reasoning provided as a basis for the internal review decision. He refers to the legislative policy behind the registration and storage provisions set out in the Act and to a number of authorities that have considered those provisions. In particular he refers to comments by the Hon J W Shaw, Attorney General and Minister for Industrial Relations, in the Second Reading speech on 25 June 1996 where he stated at page 3559 of Hansard: "Legislation should have the effect of making failure to store firearms in the manner required an offence, as well as a matter that will lead to the cancellation of the licence and the confiscation of all firearms. Measures should be indicated in legislation for the storage of firearms which are specific and clear so that firearm owners and possessors know their obligations and the following minimum basic standards should apply." 9 The Attorney General also stated at page 3562 of Hansard: "As is provided under the existing law, the police will be required to seize firearms or ammunition that is not correctly stored. The storage requirements are strict as non-compliance can easily compromise safety. For example, if firearms fall into the hands of children or others who are not licensed or trained in their safe use, accidental shootings can occur. And it is crucial to make every attempt to guard against youth suicide and to protect family members from firearms accidents". 10 Mr Pisani refers to views that I expressed in Bottomley v Commissioner of Police, New South Wales Police [2005] NSWADT 2 as supporting the principle that if a licence holder does not have sufficient appreciation of the importance of safe storage, the Tribunal would not be confident that their firearms will be stored safely in future. There should be no looking below the standard set by the Act for safe storage as non- compliance runs the very real risk of the firearms being stolen. 11 He 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] NSW ADT 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)." 12 In relation to Mr Lynch's failure to register some of his firearms, Mr Pisani refers to the fact that Mr Lynch had failed to take advantage of amnesties that would have allowed unconditional surrender of those firearms. There was an extensive media campaign that advised the general public of a 'Gun Amnesty' -commencing in June 2001 through to November 2001. That Amnesty allowed for the unconditional surrender of firearms or the registration of non-prohibited firearms. From 1 October 2003 to 30 September 2004 there was a further well-publicised general amnesty allowing for the surrender of all illegal firearms to Police for destruction. The Commissioner asserts that Mr Lynch's failure to take advantage of those amnesties suggests that he holds an attitude that is not conducive to responsible firearms ownership. 13 In summary, the Commissioner's argument is that Mr Lynch made intentional choices that put loaded firearms at risk of being stolen and placing public safety in danger. Additionally, loaded firearms around Mr Lynch's residence placed his family and anyone attending the location in very real danger of accidental shooting. Notwithstanding Mr Lynch's good character and his many good works in the community, the Commissioner contends that he has not acted responsibly regarding firearms and consequently he has forfeited the privilege of a firearms licence. 14 Accordingly, Mr Pisani submits that in the circumstances the correct and preferable decision is that Mr Lynch's licence should be cancelled. Therefore the decision under review should be affirmed. Mr Lynch's case 15 Mr Lynch provided a written statement and also gave oral evidence before the Tribunal. He also relies on the transcript of his evidence given in the Local Court proceedings and some 47 testimonials prepared for those proceedings. The authors of these testimonials are from various walks of life ranging from teachers and politicians to local business people and friends of long standing. All saw fit to provide their good opinion of Mr Lynch's character. The references testify to his high ethics, honesty and integrity, his fairness in business practise and as an employer, and his outstanding contribution to the community over many years. He has always been law-abiding, a moral person, a true gentleman. 16 Mr Lynch said that he could not face the many people who attested to his fine character was he to be charged with such an offence again. 17 His evidence is that he has an extensive history of involvement with firearms and that he has a comprehensive understanding of the need for safety and security of firearms. He also provided evidence about the security system in place at his premises to prevent intruders. He conceded that he chose to ignore what he knew to be his responsibilities as a licensee and he provided what appear to be plausible explanations for adopting that approach. 18 He has a need for firearms in relation to his operations as a primary producer. There are situations where animals have to be put down, and a gun is the most humane way to do so. It is also important that he is able to control pests such as rabbits, foxes, wild dogs, feral cats, feral deer and at times wombats. 19 There is no suggestion that anyone had, or attempted to have, any recourse to any of Mr Lynch's guns, however his evidence is that his wife and one of his sons has access to the premises. 20 Mr Jackson submits that the Magistrate had no hesitation in not recording a conviction and giving Mr Lynch a bond to be of good behaviour, and had no difficulty ordering that the registered guns be returned to Mr Lynch. When the matter was referred to the District Court because it was discovered that the good behaviour bond prevented Mr Lynch from applying to renew his gun licence, His Honour, Judge Garling had no reservations about removing the bond, and endorsing the return of Mr Lynch's guns. His Honour observed that Mr Lynch was "unlikely to offend again in this way". Mr Jackson contends that the Tribunal should form the same view. 21 Mr Lynch does not accept that it would be "in the public interest" to revoke his licence. He accepts the importance of keeping firearms safe and secure and gives an assurance that he will do so in the future. 22 Mr Jackson contends that it is overwhelmingly clear, given Mr Lynch's long, incident-free record with firearms, given his commitment to comply with the law, and given his obvious contrition, that Mr Lynch is a fit and proper person to hold a firearm, and that the correct and preferable decision is to quash the decision to revoke Mr Lynch's firearms licence, and to substitute it with a decision that Mr Lynch's Category AB licence be reinstated. Findings 23 The Act was part of a national initiative. Registration of each firearm, and authorisation to possess that firearm by an appropriate licence or permit, were the chosen means of control. Where a contravention is proven without a conviction recorded, Parliament gave the Commissioner discretion whether to revoke a licence. 24 These are difficult proceedings in that they involve an individual who is without doubt a highly valued member of his community but who has chosen to ignore what he knew to be the registration and safe storage requirements under the Act. I believe that the testimonials paint an accurate picture of Mr Lynch's character. 25 I also accept that Mr Lynch was aware of the need to register his firearms and had in fact registered some of them. The evidence establishes that he has a firearm safe, with a keypad locking system, and an ammunition cabinet. These have been inspected and approved for the purpose. This suggests he was aware of the safe storage requirements. 26 In Ward v Commissioner of Police [2000] NSWADT 28 the Tribunal's Deputy President stated at paragraphs 27 - 28: "27 …The question for the Tribunal is whether, based on all the evidence, it would have confidence that [the applicant] would not pose a risk to public safety if he had access to firearms. 28 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." 27 Although there was unquestionably a risk to public safety through Mr Lynch's actions, that risk did not materialise. Fortunately, the weapons did not fall into the hands of criminals nor did unauthorised persons use them. The police seized them. I need to determine the degree of risk to public safety if Mr Lynch's licence were reinstated. 28 Many factors need to be weighed in forming a view as to the risk to the public. The authorities to which I have been referred set out some of those factors however each case will inevitably raise its own peculiar issues for consideration. 29 I have no concerns about Mr Lynch's character or his commitment to comply with the law in future. However, in the circumstances of this matter I have concerns with respect to Mr Lynch's understanding of the obligations imposed on the holder of a firearms licence. 30 In Vella -v- Commissioner of Police, NSW Police Service [2003] NSWADT 91 I stated that the principal issue in matters where there has been a failure to store firearms safely is whether there is a risk to the safety of the public if the applicant retains the licence. The facts in Vella highlight the risk of failure to comply with safe storage requirements. Mr Vella's possession of unregistered and unsecured firearms was discovered due to a break-in at his home and the subsequent kidnapping of his daughters. Two rifles owned by Mr Vella were hidden behind a chest of drawers in an unlocked cupboard. Ammunition for the rifles was hidden in the same unlocked cupboard. The offender had broken into and ransacked the premises, found the firearms and used them against Mr Vella's daughters. 31 More commonly, failure to secure firearms presents the risk that they will fall into the hands of persons who are not licensed or trained in their safe use. The facts in Rosenboom v Commissioner of Police, New South Wales Police [2006] NSWADT 10 provided a particularly tragic example of a youth suicide where a member of the licensee's household used an unsecured firearm. In Dewar v Commissioner of Police, New South Wales Police Service [2003] NSWADT 115 a young person used the licensee's rifle, and ammunition already loaded in the rifle, to shoot at cows in a paddock. The firearm was later given to an adult who was not licensed to possess such a firearm. There are numerous other examples that could be provided to demonstrate the potential for misuse should firearms fall into the wrong hands. 32 Fear of repercussions may also make it unlikely that someone will report a firearm stolen if they are not licensed to own that firearm, or if the firearm was not registered. This adds a further element of risk to the public. 33 Mr Lynch indicated that one of the unregistered, unsecured firearms in issue was a double barrel 12 gauge shotgun, that was not only in pieces but also had pieces missing. He also indicated that he had not been aware that the rifle is still a firearm whether it is in pieces or not, but simply accept that it is the case. In my view this suggests a lack of understanding of the reasoning behind the registration and storage requirements. The risk to the public is not removed simply because a firearm is not operational. Such a firearm can still be used in a hold-up or to threaten someone. A person not familiar with firearms might not make the differentiation between an operational firearm and one that had pieces missing if the firearm was pointed at them. They might reasonably believe that the rifle could cause them damage. There can be no doubt that it could give rise to an apprehension or fear of harm. The storage requirements are strict as non-compliance can easily compromise safety. 34 In my view, it cannot be said that there is 'virtually no risk' to public safety so long as Mr Lynch lacks an understanding of the reasoning behind the registration and storage requirements. While I agree that Mr Lynch is "unlikely to offend again in this way", my concern is to try to ensure that he does not offend in other ways because of this. However, these concerns can be overcome. In Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75 I stated: "25 Responsibilities extended to licence holders are of a serious nature and licence 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 I am not satisfied that Mr Wiltshire has sufficient understanding and appreciation of the importance of safe storage. That being the case I could not be confident that his firearms will be stored safely in the future. Mr Wiltshire could take steps to overcome his present lack of understanding of the statutory obligations. At this time however, it is my view that more would be required before the public could be comfortable with Mr Wiltshire again holding a firearms licence. At the bare minimum this would require that Mr Wiltshire completed, to the satisfaction of the Commissioner, firearms training and safety courses relevant to the licence that he seeks." 35 I hold the same view in relation to Mr Lynch. That being the case, the licence should not be returned. It follows, in my view, that the Commissioner's determination to revoke Mr Lynch's licence is the correct and preferable one and therefore it should stand. However, I recommend that if Mr Lynch reapplies for a licence and is able to satisfy the Commissioner that he has acquired sufficient understanding and appreciation of the importance of safe storage, the Commissioner should take into account my view that I consider that there are no other factors that should prevent him from being granted the licence. Order The decision of the Commissioner of Police, New South Wales Police Service to revoke Mr. Lynch's firearms licence is affirmed.