Allan v Commissioner of Police, NSW Police [2008] NSWADT 230

CITATION: Allan v Commissioner of Police, NSW Police [2008] NSWADT 230

DIVISION: General Division

APPLICANT Alexander Robert Allan PARTIES: RESPONDENT Commissioner of Police, NSW Police

FILE NUMBER: 083034

HEARING DATES: 24 April 2008

SUBMISSIONS CLOSED: 30 June 2008

DATE OF DECISION: 20 August 2008

BEFORE: Montgomery S - Judicial Member

MATTER FOR DECISION: Principal matter

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Firearms Act 1996

Aubrey v Commissioner of Police [2005] NSWADT 266 Brosowski v Commissioner of Police [2003] NSWADT 182 CASES CITED: Commissioner of Police v Toleafoa [1999] NSWADTAP 9 May v Commissioner of Police [2001] NSWADT 82 Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28

APPLICANT L Allan, agent REPRESENTATION: RESPONDENT K Mattes, solicitor

ORDERS: The decision under review is affirmed.

REASONS FOR DECISION 1 This is an application by Mr Allan for review of a decision of the Commissioner of Police, NSW Police ("the Commissioner"), to revoke Mr Allan's Class AB licence under the Firearms Act 1996 ("the Act"). Background 2 The background to this application is not in dispute. Mr Allan gave evidence that he has had a firearms licence for approximately thirty years. His Category AB licence was issued to him on 28 January 1999 and renewed on 5 February 2004. This renewal was due to expire on 5 February 2009. 3 The "genuine reason" nominated in the application was "recreational hunting/vermin control". Mr Allan explained that his cousin has given him permission to shoot on his property. 4 In his application for renewal in 2004, Mr Allan disclosed that he had suffered a "slight nervous condition ...since being unemployed" which he was controlling with medication. At the request of the Firearms Registry Mr Allan obtained a medical assessment from Dr Toni Kesby in May 2004. Dr Kesby stated that in July 2003 Mr Allan had been diagnosed as having Paranoid Personality Disorder with depression. The condition had stabilised on medication. Dr Kesby indicated her belief that Mr Allan would be able to exercise continuous and responsible control over firearms. 5 On 12 May 2007 Police officers were called to attend an incident at Mr Allan's property. The police were advised that in a telephone call with his brother, Mr Allan had threatened to harm himself by "blowing his head off". He admitted to police that he was going to shoot himself, and also threatened to shoot his next-door neighbour. 6 Police seized Mr Allan's firearms and Mr Allan was admitted to the Mental Health section of Maitland Hospital. As a result of the incident, the Commissioner suspended Mr Allan's firearms licence. Mr Allan was asked to obtain a report from a registered psychologist or psychiatrist to enable the Firearms Registry to assess his suitability to continue to hold a firearms licence. 7 In a report dated 22 June 2007,15 Dr Artin Jebejian of Hunter New England Mental Health advised that: Mr Allan had been admitted to the Maitland Mental Health Unit due to threats of harm to himself and others with a gun, while intoxicated; Mr Allan had been diagnosed with alcohol dependence and an "adjustment order, not otherwise specified"; Mr Allan had multiple psychosocial stressors of unemployment, a move to another suburb, harassment from neighbours, and little family support except from his wife; Mr Allan had been drinking alcohol increasingly over the past 12 months; the risk of self harm or harm to others remained if Mr Allan was intoxicated; Mr Allan had been advised that the risk of worsening mental state while drinking alcohol, as well as the ongoing psycho-social stressors make him vulnerable to act in an irrational way, in particular if guns are available to him, thereby posing a threat to public safety and to himself; and It was too early to consider it safe for Mr Allan to have his firearms licence. 8 In October 2007, Mr Allan's Category AB Licence was revoked by a delegate of the Commissioner on the grounds that it "would not be in the public interest" for Mr Allan to continue to hold his firearms licence. Mr Allan sought internal review of the decision to revoke his licence. He provided a further report of Dr Jebejian, dated 19 November 2007, in which it was stated that: Mr Allan and his wife had seen Dr Jebejian on 16 November 2007 with respect to his capacity to have his firearms back; the risk involved with Mr Allan having access to his firearms was currently "low", as he had been sober since his discharge from Maitland Mental Health Unit and was currently back at work; Mr Allan showed no mood or psychotic disorder on review, and denied having thoughts of harm to himself and to others; Mr Allan may need, as a precaution, a re-referral for review of risk every 6 months by a psychiatrist, as the assessment of risk depended on a continued abstinence from alcohol; and that alcohol would be a risk factor to Mr Allan's impulsive behaviour. 9 The internal review application was determined in December 2007 and the decision to revoke Mr Allan's licence was affirmed. Mr Allan sought review of that determination by this Tribunal. The matter was heard on 24 April 2008. I adjourned the matter to enable Mr Allan to obtain a further report from Dr Jebejian. 10 In a further medical report, dated 7 May 2008, Dr Jebejian advised that: he saw Mr Allan on 7 May 2008 with respect to his capacity to have his firearms back; currently there is no risk of harm to Mr Allan or to others, as he has been alcohol free since his discharge from Maitland Mental Health Unit in May 2007 and is working; and continued abstinence is necessary to keep the risk at the minimal level, as impulsive behaviour happened "only in the context of alcohol intake." Applicable legislation 11 Section 3 of the Act sets out the principles and objects of the Act. It is an underlying principle of the Act to "confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety" and to improve public safety by imposing "strict controls" on the possession and use of firearms. 12 Section 11(4)(b) of the Act provides: 4) Without limiting the generality of subsection (3) (a), a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of: (b) any previous attempt by the applicant to commit suicide or cause a self-inflicted injury 13 Section 22 of the Act provides for the suspension of a licence, where the Commissioner is satisfied that there may be ground for revoking a licence. 14 Section 24 empowers the Commissioner to revoke firearms licences in certain circumstances. In particular, section 24(2) provides that the Commissioner may revoke a licence: (a) for any reason for which the licensee would be required to be refused a licence of the same kind, or (d) for any other reason prescribed by the regulations. 15 Clause 19 of the Firearms Regulations 2006 ("the Firearms Regulation") provides that the Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence. 16 Section 75(1)(d) of the Act provides that a person may apply to the Tribunal for review of a decision to revoke a licence issued to the person. The Commissioner's case 17 The Commissioner relies on a bundle of material filed pursuant to section 58 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"). The Commissioner's material includes a copy of Mr Allan's licence application, the revocation determination by the Commissioner's delegate and documents related to the internal review of that determination. It includes a letter from Dr Kesby, dated 7 May 2004; documents relating to the dispute with Mr Allan's next-door neighbour and police reports concerning the incident of 12 May 2004 and reports from Dr Jebejian. 18 Ms Mattes provided written submissions in support of the Commissioner's case. She notes that the Commissioner revoked Mr Allan's licence, pursuant to section 24(2)(d) of the Act and clause 19 of the Firearms Regulation, on the grounds that the Commissioner was satisfied that it was "not in the public interest for the licensee to continue to hold the licence." She submits that it is too soon after the incident of 12 May 2007 for the Tribunal to be satisfied that Mr Allan's access to firearms should be restored. 19 Ms Mattes referred to the Appeal Panel decision in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 where it was recognised that the "public interest" is an "inherently broad concept" which gives the decision maker "the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. She also referred to views expressed by Judicial Member Lees in May v Commissioner of Police [2001] NSWADT 82, at paragraphs [50] – [52]: 50 In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, a security industry licencing matter , the Tribunal's Appeal Panel stated (at 25) that the public interest is: '. . . an inherently broad concept giving the [decision maker] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual....'. 51 The Tribunal found in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 that these comments are equally applicable in the context of the Act and that the 'public interest' in relation to the holding of a firearms licence is referable to the objects and principles set out in Section 3 of the Act. 52 The interests of the public in circumstances such as these include its interest in its own safety, in maintaining the principle that individual access to firearms is a conditional privilege not a right and its related interest in tight, strict and fair control of the presence of weapons in the Australian community. These interests are clearly reflected in the principles and objects of the Act. 20 Ms Mattes submits that in this case the Tribunal must weigh up the "privilege" of Mr Allan having access to firearms, as against the risk of safety to the public that results from such access, with greater weight to be given concerns about public safety. She referred to views that I expressed in Aubrey v Commissioner of Police [2005] NSWADT 266 where I stated at paragraph [21]: "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 She says that Mr Allan seeks to have access to firearms for the purpose of hunting vermin on a private property and recreational shooting. He no longer requires his firearms for the purpose of primary production and there is no suggestion that Mr Allan's financial livelihood is at stake. This must be balanced against an assessment of whether there is a risk to the safety of the public if Mr Allan retains the licence. 22 Ms Mattes submits that the relevant test for the Tribunal to apply is that set out in Ward v Commissioner of Police where the Tribunal held at paragraph [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." 23 The likelihood of risk is something to be "assessed by reference to Mr Allan's prior conduct": Brosowski v Commissioner of Police [2003] NSWADT 182 at paragraph [41]. 24 Ms Mattes submits that in these circumstances, having regard to Mr Allan's prior conduct, the Tribunal can not at this time be satisfied that there is "virtually no risk" if his firearms licence were to be restored. While Dr Jebejian has assessed the current risk of Mr Allan having access to firearms as low, this assessment requires Mr Allan's continued abstinence from alcohol. Alcohol intake remains a risk factor for impulsive behaviour for Mr Allan. The Commissioner simply submits that there needs to be a longer, incident-free period on Mr Allan's part before the Tribunal can be satisfied that there is "virtually no risk" in restoring Mr Allan's access to his firearms. 25 The Commissioner further contends that the events of 12 May 2007 provide sufficient grounds for the Tribunal to conclude that Mr Allan may not exercise continuous and responsible control over firearms. While the intervention of Mr Allan's brother and the police ensured that no tragic consequences eventuated, the subsequent medical assessment of Dr Jebejian confirms that the risk of Mr Allan harming himself was very real. 26 In the Commissioner's submission, the medical assessments of Dr Jebejian give rise to some doubts as to the whether Mr Allan will exercise continuous and responsible control of firearms into the future, in particular if he has consumed alcohol. 27 Accordingly, the Commissioner submits that the determination to revoke Mr Allan's licence should be affirmed. Mr Allan's case 28 Ms Leanne Allan appeared on behalf of Mr Allan. She does not dispute the events that lead to the determination to revoke Mr Allan's licence. She concedes that Mr Allan had suffered depression and that the period leading up to the incident of 12 May 2007 was particularly stressful for Mr Allan. He had health concerns. He was not employed and his drinking had escalated into a problem. He was engaged in a bitter dispute with his next-door neighbour, culminating in Ms Allan obtaining an apprehended violence order against the neighbour. 29 Nevertheless, Ms Allan maintains her belief that Mr Allan would not have carried out his threats to himself or his neighbours. There is no suggestion that he did not cooperate with the Police nor is it suggested that he had not secured his firearms safely. 30 Mr Allan's case is essentially that he has not consumed alcohol since the incident of 12 May 2007 and that he has no desire to do so. He desire to have his firearms licence reinstated is important to him. He wants to join a gun club and is willing to take any test to prove his abstinence from alcohol and if needed he is prepared to undertake medical assessments on a regular basis. 31 Mr Allan is asking the Tribunal to give him a second chance and to reinstate his firearms licence. Findings 32 I agree with the Commissioners assessment of the legal issues involved in this matter. The relevant test for the Tribunal to apply is that set out in Ward. I repeat the view that I expressed in Aubrey that the public's right to safety must outweigh an individual's privilege to possess and use a firearm. I note however that the circumstances of this matter are quite different to those in Aubrey. In Aubrey I stated at paragraphs [23] –[ 24]: 23 In my view, Mr Aubrey has exhibited a course of conduct that rightly gives the Commissioner cause for concern. I note that Mr Aubrey has denied that there is any substance to the Commissioner's allegations in relation to either the 9 December 2003 incident or the September 2004 incident, and of themselves these incidents may well be of little concern. However, the Centrelink issue suggests that Mr Aubrey has great difficulty in dealing with frustration. Mr Aubrey was not privy to the confidential evidence on which the Commissioner relies. However, this evidence clearly highlights the lack of control that Mr Aubrey has demonstrated when confronted with a frustrating circumstance. 24 In light of the evidence I am of the view that there would be risk to the public if Mr Aubrey were in possession of a firearm at a time when he was confronted with an equally frustrating circumstance. It follows in my view that the correct and preferable decision is to revoke his firearms licence. Accordingly I affirm the Commissioner's decision. 33 I do not have the same level of concern in regard to the risk posed by Mr Allan. I take significant comfort from the most recent report provided by Dr Jebejian and I have confidence that the risk to the public should he again have access to firearms has been significantly reduced. Nevertheless I agree with the Commissioner that it is simply too soon after the incident of 12 May 2007 to be satisfied that there would be virtually no risk to the public safety if Mr Allan's access to firearms were restored. It follows that Mr Allan's licence should not be reinstated yet. 34 In my view if Mr Allan were to be able to demonstrate abstinence for a further period of six months from the dated that he last saw Dr Jebejian, the Commissioner could be satisfied that he poses virtually no risk to public safety. If that is the case and if Mr Allan were to reapply for a firearms licence, the Commissioner may well reach a different conclusion. Order The decision under review is affirmed.