Dewar v Commissioner of Police, New South Wales Police Service [2003] NSWADT 115

CITATION: Dewar v Commissioner of Police, New South Wales Police Service [2003] NSWADT 115 DIVISION: General Division APPLICANT PARTIES: Simon Thomas Dewar RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 033025 HEARING DATES: 17/04/2003 SUBMISSIONS CLOSED: 04/17/2003 DATE OF DECISION: 05/20/2003

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 Administrative Decisions Tribunal Act 1997 Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED : Firearms (General) Regulation 1997 Firearms Act 1996 Security Industry Act 1997 CASES CITED: Phegan v Commissioner of Police, New South Wales Police Service [2002] NSWADT 127 Hart v Commissioner of Police, New South Wales Police Service [2003] NSWADT 114 APPLICANT REPRESENTATION: In person RESPONDENT C Capper, advocate ORDERS: 1. The Commissioner's decision to revoke Mr Dewar's Category AB firearms licence is affirmed.

The Application 1 These proceedings relate to a decision by the Commissioner of Police, New South Wales Police Service ("the Commissioner") to revoke the category AB firearms licence held by Mr. Simon Dewar. Mr. Dewar has held firearms licences for some 40 years. He was issued the licence in question on 22 December 1998, and it would have been due to expire on 12 February 2004. The licence was revoked on 22 November 2002. The decision to revoke Mr. Dewar's licence followed an event on 15 October 2001 in which Mr. Dewar left his 0.22 magnum rifle unattended in his vehicle. A young person riding past on a bicycle saw the rifle, and stole it. After dark, that same day, the young person used the rifle, and ammunition apparently already in the rifle, to shoot at cattle on the outskirts of town. 2 Police attended a local hotel and spoke with a number of patrons, including Mr. Dewar. All persons were asked if they had any rifles in their vehicles, and if so, if they could check on them. No person volunteered any information at that time. 3 The firearm and ammunition were subsequently recovered and identified as belonging to Mr. Dewar. Mr. Dewar's licence was confiscated, and he was subsequently charged in relation to the incident due to his failure to prevent the theft or loss of the firearm, in breach of the Firearms Act 1996 ("the Act"). 4 On 18 February 2002 Mr. Dewar was convicted in the Moree Local Court of 'not prevent theft/loss of firearm - not prohibitedfirearm/pistol' and fined $300. Mr. Dewar appealed the severity of the Local Court decision and on 4 June 2002 the Narrabri District Court dismissed the conviction under section 10 of the Crimes (Sentencing Procedures) Act 1999. 5 On 3 December 2002, Mr. Dewar sought an internal review of the Commissioner's decision to revoke his licence. The internal review was finalised on 10 January 2003and the decision was taken that the original decision to revoke Mr. Dewar's licence was to stand. On 29 January 2003 Mr. Dewar applied to the Tribunal for review of that decision. Background 6 The facts of this matter are not in dispute. Mr. Dewar is a well respected grazier and citizen of Moree District. This much is evident from testimonials presented on his behalf. Mr. Dewar owns and manages a property near Moree, running mainly cattle with a few sheep and crops. 7 From time to time an animal has to be put down because it suffers illness, breaks a leg, gets bogged in a dam or for some other reason. Mr. Dewar's property is 25 kilometres from town, where there are only three vets. It would not be feasible to get a vet out to put the animal down humanely. Mr. Dewar uses his firearm for this purpose. 8 In the last four years Mr. Dewar has had to put down two dogs that had been bitten by snakes. Mr. Dewar also uses the firearm to shoot feral pigs to prevent them spreading disease and damaging crops. 9 Mr. Dewar has a steel security gun safe bolted to a concrete floor, for the safekeeping of firearms. He uses the firearm on his property and it rarely leaves the property. It is usually stored in the gun safe when not in use. 10 On Monday 15 October 2001 Mr. Dewar used his rifle on his property to destroy a sick bull. He didn't return to his home, but had to go to town for spare parts. Later that day he again drove his vehicle into town with the rifle still in the vehicle. He parked his vehicle outside a hotel whilst attending inside. 11 About 5pm on that same day a young person riding past the vehicle stole the rifle from the vehicle. A witness saw the young person carrying the rifle and informed the police. The police conducted a patrol of the area and they attended the hotel and spoke with a number of the patrons, including Mr. Dewar. All of the patrons were asked if they had any rifles in their vehicles, and if so, if they could check on them. None of the patrons volunteered any information at that time. 12 After dark, the young person used the 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. 13 Police recovered the rifle on Wednesday 17 October 2001. A check of the serial number revealed it was registered to Mr. Dewar, and the police interviewed him. Mr. Dewar claimed that he had forgotten that the rifle was in the vehicle. He denied that the rifle was left on the utility tray, stating it was inside the cab beside the passenger's seat. He stated that he had loaded the 10 round magazine with only 5 rounds, and that he had used 2 rounds that morning. He also stated that there were no signs of forced entry to the vehicle. Reviewable decision 14 The reviewable decision is that of the Commissioner to revoke Mr. Dewar's firearms licence. On 29 January 2003 Mr. Dewar applied to this Tribunal for review of the Commissioner's decision. The matter was listed before the Tribunal's President on 18 February 2003 at which time he made directions for the filing of documents and the matter was listed for hearing at Moree on 17 April 2003. The matter proceeded on that day. Applicable Legislation 15 Section 63 of the Administrative Decisions Tribunal Act 1997 provides for the approach to be taken by this Tribunal in determining an application for a review of a reviewable decision. Section 63 provides: " 63 Determination of review by Tribunal (1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. (3) In determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal." 16 The legislation of most relevance to these proceedings is the Act and the Firearms (General) Regulation 1997 ("the Regulation"). The objects of the Act are set out in section 3 which, insofar as is relevant to these proceedings, provides: " 3 Principles and objects of Act … (2) The objects of this Act are as follows: … (e) to ensure that firearms are stored and conveyed in a safe and secure manner". 17 A licence is held subject to conditions. Section 19 of the Act sets out conditions relevant to these proceedings as follows: " 19 Conditions of licence (1) A licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose. (2) Without limiting subsection (1), each licence is subject to the following conditions: (a) the licensee must comply with the relevant safe keeping and storage requirements under this Act, …" 18 The relevant safe keeping and storage requirements are set out in Part 4 of the Act as follows: " Part 4 - Safe keeping of firearms 39 General requirement (1) A person who possesses a firearm must take all reasonable precautions to ensure: (a) its safe keeping, and (b) that it is not stolen or lost, and (c) that it does not come into the possession of a person who is not authorised to possess the firearm. Maximum penalty: 50 penalty units or imprisonment for 2 years, or both, if it is established beyond reasonable doubt that the firearm concerned was a prohibited firearm or a pistol, or 20 penalty units or imprisonment for 12 months, or both, in any other case. (2) The regulations may specify the precautions that are taken to be reasonable precautions for the purposes of this section. 40 Category A and category B licence requirements (1) The holder of a category A or category B licence must comply with the following requirements in respect of any firearm to which the licence applies: (a) when any such firearm is not actually being used or carried, it must be stored in a locked receptacle of a type approved by the Commissioner and that is constructed of hard wood or steel and not easily penetrable, (b) if such a receptacle weighs less than 150 kilograms when empty, it must be fixed in order to prevent its easy removal, (c) the locks of such a receptacle must be of solid metal and be of a type approved by the Commissioner, (d) any ammunition for the firearm must be stored in a locked container of a type approved by the Commissioner and that is kept separate from the receptacle containing any such firearm, (e) such other requirements relating to security and safe storage as may be prescribed by the regulations. Maximum penalty: 20 penalty units or imprisonment for 12 months, or both. (2) A licensee does not have to comply with the requirements of this section if the licensee satisfies the Commissioner that the licensee has provided alternative arrangements for the storage of firearms in the licensee's possession that are of a standard not less than the requirements set out in this section." 19 The Regulation makes provision for the issue of a licence only if the applicant understands the requirements of the Act concerning firearm safety and storage. Clause 7 of the Regulation provides: "7 Licence applicant's understanding of requirements concerning firearm safety and storage Before being issued with a licence, the applicant must prove to the Commissioner's satisfaction: (a) that the applicant is aware of, and understands, the requirements of the Act concerning firearm safety and storage, and (b) that the applicant will, if issued with a licence, be able to comply with those requirements." 20 The power of the Commissioner to revoke a firearms licence is set out in section 24 of the Act as follows: " 24 Revocation of licence (1) A licence that authorises a person to possess or use a firearm is automatically revoked if the licensee becomes subject to a firearms prohibition order or an apprehended violence order. (1A) The Commissioner must revoke a licence that is held for the purpose of employment as an armed security guard (within the meaning of the Security Industry Act 1997) if the licensee has failed to undertake any firearm safety training required under this Act or the regulations. (2) A licence may be revoked: