Porquet v Commissioner of Police, New South Wales Police [2006] NSWADT 112

CITATION: Porquet v Commissioner of Police, New South Wales Police [2006] NSWADT 112

DIVISION: General Division

APPLICANT PARTIES: Daniel Porquet RESPONDENT Commissioner of Police, New South Wales Police

FILE NUMBER: 053386

HEARING DATES: 28/03/06

SUBMISSIONS CLOSED: 03/28/2006

DATE OF DECISION: 04/13/2006

BEFORE: Montgomery S - Judicial Member

CATCHWORDS: Firearms Act - firearms licence - issue of licence or permit - Firearms licence - issue of licence or permit

MATTER FOR DECISION: Principal matter

LEGISLATION CITED : Firearms Act 1996

Bazouni & Ors v Commissioner of Police [2002] NSWADT 100 Cottrell v Commissioner of Police [2004] NSWADT 244 CASES CITED: Robinson v Commissioner of Police [2005] NSWADT 5 Uzelac v Commissioner of Police [2003] NSWADT 226 Ward v Commissioner of Police [2000] NSWADT 28

APPLICANT D Davidge, solicitor REPRESENTATION: RESPONDENT W Pisani, agent

ORDERS: The Commissioner's decision to refuse Mr Porquet's application for the renewal of his Category ABC firearms licence is set aside.

REASONS FOR DECISION 1 Daniel Porquet was born on 20 August 1962 and is aged 43. On 16 April 1999, he was issued with a Category ABC firearms licence under the Firearms Act 1996 ('the Act'). With the licence due to expire on 13 May 2004, on 23 April 2004, Mr Porquet applied to renew the licence. On 7 March 2005, a Notice of Refusal was posted to Mr Porquet and the licence application was deemed refused on 11 March 2005. On 10 October 2005, this decision was confirmed after an internal review. On 4 November 2005, Mr Porquet applied to the Tribunal for a review of the decision. 2 The Commissioner relies on s 11(7) of the Act and contends that the issue of a licence to Mr Porquet would be contrary to the public interest. Mr Porquet has the following convictions: 15 December 1980: "drive cancelled" – fined $200 13 May 1981: "possess loaded firearm in a public place" – fined $150 3 October 1989: "possn prohibited drug (cannabis leaf)" – fined $100 11 April 1990: "cultivate prohibited plant (cannabis)" – fined $500 19 January 2005: "possess/use a prohibited weapon w/o permit – T2" – found guilty but no conviction recorded, placed on 6 month good behaviour bond. 3 The conviction on 19 January 2005, followed a police search of Mr Porquet's property "Lakeview", Lake Cargelligo, on 12 August 2004, when cannabis plants and hydrophonic equipment were located in a shed on the property and a catapult, 11 throwing stars, 2 throwing knives, a radar detection device and a starter pistol were found in a bedroom of the house. In addition to the charge on which he was found guilty, on 15 August 2004, Mr Porquet was also charged with "possn/use of a prohibited weapon (2 counts)" (the throwing knives), "not remove/surrender a prohibited speed evasion article" (the radar detection device), "not keep firearm safely – not prohibited firearm/pistol" (the starter pistol) and "possess unauthorised firearm – T2" (the starter pistol). The first two charges were withdrawn and the latter two charges were dismissed. The conviction appears to have been in respect of the throwing stars. Mr Porquet's Case 4 Mr Davidge, for Mr Porquet, relied on his submissions made in relation to the internal review dated 27 May 2005. He said that Mr Porquet acknowledges his past history and, in particular, his criminal culpability in respect of the 1989 and 1990 convictions, but says he has matured since then and asks that greater weight be placed on his conduct since the issue of his most recent licence. The fact that the finding of guilt with respect to the possession/use of a prohibited weapon was made without conviction and with the imposition of a 6 month good behaviour bond, reflects the Magistrate's acceptance of a low degree of actual and moral culpability on Mr Porquet's part. 5 Mr Porquet gave evidence that at the time of the police search on 12 August 2004, he was not living at his property. Nine years ago, he made an arrangement with the mother of his child, who is not his partner, that she could live on the farm rent-free in return for her not claiming maintenance payments from him. Mr Porquet lived in Sydney or elsewhere although he used to visit the property periodically, in order to go shooting, and for birthdays, if someone was sick, or in the case of emergencies. The arrangement was that he would pay rates for the property, and bills for the water pumps and maintenance of the property, but he did not pay everyday bills. He said that electricity bills for the property have always been high (around $4,000 a quarter) because of the irrigation pumps. 6 Mr Porquet said that the address on his firearms licence was that of the property because he kept his firearms there in locked storage in a special locked room in the house. When he applied for a licence, he told the police he would only be shooting at the property and that his firearms would be kept there. The police said he should put the address of the property in his application. The address on his driver's licence was Bidwell until he moved to the property two to three weeks after the police search in August 2004, when he realised, after all the trouble with the police, that this was preferable to having it tenanted. When he moved to "Lakeview", he changed the address on his driver's licence to show that address. 7 Mr Porquet said the shed where the four cannabis plants were found by the police on 12 August 2004, is between 250 and 500 metres from the house. He had not been in the shed since furniture had been stored there before the farm was tenanted to the mother of his child. He was not aware of the existence of the cannabis and would have destroyed the plants had he been aware of them. Mr Davidge said Mr Porquet's tenant, the mother of his child, pleaded guilty and was convicted of charges in relation to the cannabis. 8 Mr Porquet said the bedroom in the house on the property where the police found the throwing stars and other items, is used by a number of people who stay at the property from time to time, including him, his parents, his brother, and friends. The room is also used for storage. When the police located the various items, he said he would take responsibility for them since they were found on his property. Some of the items were located in a locked briefcase belonging to his brother, Victor Porquet. His brother provided a statement dated 3 March 2005 stating that the throwing stars and catapult were his property. The throwing stars were medalions awarded to him for achievements at the martial arts academy he attended, and the sling he used for throwing groundbait when he went fishing. 9 Mr Porquet said he broke open the briefcase in the presence of the police because he did not know the combination of the lock. He was not aware his brother was storing these items at the property. The throwing stars are not intended for throwing and are different to those that are thrown, being made of stamped metal without sharpened, honed edges. Essentially, they are badges to be worn on a belt and do not pose a risk to public safety. The starter pistol was also among the stored items and belonged to his brother. The starter pistol does not have a barrel but uses percussion caps. 10 Mr Porquet said the set of scales found by the police in the bedroom were a family heirloom which his father had acquired in the Philippines, and were similar to scales his solicitor has in his office. The water testing kit is for testing the quality of the water on the property, which is used for drinking and other household uses as well as irrigation. 11 Mr Davidge referred to the firarms audit conducted by officers of the Firearms Registry at the property on 27 May 2003. The report of the audit records that "[w]hen informed that police wished to conduct an audit on his firearms, Mr Porquet was extremely helpful and produced all firearms and relevant registration certificates". Although there were a few minor problems identified, the report states that "[o]verall, police were pleased with the storage facilities for Mr Porquet's firearms". Mr Porquet said, referring to those problems, that there was a misunderstanding by the police, and that the firearm bolts and ammunition were stored in separate safes with different locks and keys. 12 With regard to the Australian Federal Police search of the property on 29 June 2005, when two replica pistols, one butterfly knife and boxes of ammunition were seized, Mr Porquet said the knife was like a fishing knife, which had been approved by the police who searched the property in August 2004. The two replica pistols were toys which looked like pistols, and the one and a half boxes of .22 ammunition had been untouched in the locked steel cabinet since the search in August 2004, and Mr Porquet was not aware the boxes were still there. Mr Davidge said the replica pistols and knife have been returned to Mr Porquet. Since no charges were laid in respect of the ammunition, Mr Davidge said he assumes the police accepted that Mr Porquet was not aware of his being in possession of it. No further proceedings have resulted from this search. 13 Mr Davidge said that Mr Porquet has a genuine need for the firearms licence. He is an orchardist providing fruit and vegetables to the Lake Cargelligo area and needs the firearms to protect his orchards from pest damage by scaring away birds and bats, and to control rabbits and predation by foxes, crows and, to a lesser extent, pigs. Mr Porquet also owns a large number of native, domestic and exotic animals and occasionally requires a firearm for humane destruction of an animal. Similarly, he is the contact person for the Lachlan Valley WIRES service and is often called on to care for sick and injured animals, occasionally being required to dispatch one humanely. 14 Mr Davidge submitted that there is in fact a public benefit from Mr Porquet having a firearms licence and that the matters relied upon to impune his fitness are relatively minor. Mr Porquet recognises that having a firearms licence is a privilege. Mr Davidge referred to a number of previous Tribunal decisions dealing with the issue of public interest, including Cottrell v Commissioner of Police [2004] NSWADT 244, at paragraph 9, where Deputy President Hennessy described the concept of public interest as a broad one which can encompass a person's character. She referred to relevant considerations in that case as including the circumstances of the applicant's conviction, the storage arrangements for firearms, and the reason for the applicant having a firearms licence. The Commissioner's Case 15 Mr Pisani appeared for the Commissioner and relied on the brief of evidence filed with the Tribunal, including the Statement of Reasons for the decision on the internal review dated 10 October 2005. The internal review officer considered "it reasonable to believe that you were fully aware of the fact that cannabis plants were being cultivated on your property" and that Mr Porquet's previous involvement with prohibited drugs "raises concerns that you have been directly involved in the cultivation of cannabis". 16 The officer was of the opinion that the possession of the radar detector "indicates your deliberate intention to flout the law", and that Mr Porquet held no permits for the possession of the throwing stars and catapult. The fact that Mr Porquet did not mention his brother owning various items found in the course of the search on 12 August 2004 "raises concerns regarding your honesty". The fact that the throwing stars may not have had sharpened points does not detract from these being prohibited articles. The starting pistol, which was not secured or hidden, was also a prohibited firearm, and the officer noted that the Magistrate had ordered that it not be returned to Mr Porquet. The internal review officer placed weight on the Magistrate's finding of guilt on the possession charge and imposition of the 6 month good behaviour bond, notwithstanding that no conviction was recorded. The review officer also noted the storage problems identified by the police audit in 2003. 17 With regard to the police search on 29 June 2005, the review officer placed weight on the fact that Mr Porquet had been found in possession of two prohibited firearms, two prohibited weapons and ammunition only a short time after his appearance at the Local Court in relation to the August 2004 charges. This raises concerns about Mr Porquet's honesty and responsibility. The officer concluded that there was no indication that Mr Porquet accepted responsibility for his actions or that he regreted them and, consequently, he found no indication that Mr Porquet would cease breaking the law. Despite Mr Porquet's stated need for a firearms licence, the review officer was satisfied that to grant Mr Porquet's application for a licence "may pose a substantial risk to public safety". 18 Mr Pisani pointed to the principles and objects of the Act stated in s 3 where it is emphasised that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. This should be borne in mind in relation to the discretion to grant or refuse a licence. Mr Pisani referred to a number of previous Tribunal decisions where exercise of the discretion was discussed. In Uzelac v Commissioner of Police [2003] NSWADT 226, at paragraph 19, Deputy President Hennessy summarised the relevant principles, noting that "the principal issue is whether there is a risk to the safety of the public if the applicant retains the licence". In Robinson v Commissioner of Police [2005] NSWADT 5, at paragraph 30, the Tribunal said that the "primary issue here is whether the Applicant is able to demonstrate qualities that would allow the Tribunal and the public to have confidence in his honesty, knowledge and capacity in relation to these licences". 19 In Ward v Commissioner of Police [2000] NSWADT 28, at paragraphs 27 to 29, the Tribunal said: "27. ... The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward 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 there is virtually no risk. 29. In assessing the risk, a person's conduct is to be considered, not merely the fact of a conviction: Bazouni & Ors v Commissioner of Police [2002] NSWADT 100." 20 Mr Pisani submitted the whole of Mr Porquet's history should be considered including his 1990 cannabis conviction. Discussion and Findings 21 Section 11(7) of the Act states: "Despite any other provisions of this section, the Commissioner may refuse a licence if the Commissioner considers that issue of the licence would be contrary to the public interest." 22 The parties referred me a number of Tribunal decisions, cited above, where the concept of public interest has been considered. It is clear that, in accordance with the objects in the Act, a firearms licence is a privilege, and that in exercising the discretion to refuse a licence, the public interest is of paramount importance. The decision-maker must be satisfied that to grant a license would pose virtually no risk to public safety. 23 Relevant considerations in Mr Porquet's case include (1) his criminal history and other associated conduct, notwithstanding that no conviction may have resulted from a police investigation, with particular emphasis on his recent history, (2) whether any of the recent conduct gives rise to concerns for public safety, including in relation to the storage arrangements for his firearms, and (3) the reasons for his needing a firearms licence. 24 I note that Mr Porquet's recent criminal history does not involve any conviction associated with the use of a firearm. The finding of guilt made by the Magistrate on 19 January 2005 appears to have been in relation to the throwing stars. I accept Mr Porquet's explanation, which his brother confirmed in his statement, and in the absence of any other evidence, that these throwing stars were intended as martial arts badges of achievement rather than being offensive weapons. The fact that the magistrate did not record a conviction, and only imposed a 6 month good behaviour bond, indicates that the offence was a minor one, and I note that it did not involve a firearm. 25 Mr Porquet had had no previous convictions in the 15 years since his conviction for cultivating cannabis in 1990. He has provided a reasonable explanation in relation to the other items seized during the course of the police search on 12 August 2004, and I accept his evidence that he was not resident at the property at that time and made only periodic visits. There is no evidence to connect Mr Porquet with the cultivation of the cannabis plants found by the police and in respect of which his tenant and the mother of his child pleaded guilty, beyond the fact that he owned the property. In my view, it was unreasonable for the internal review officer to form the view that there were serious concerns that Mr Porquet was directly connected with the cultivation of the cannabis because of his previous convictions for possession and cultivation of cannabis 15 years earlier, in 1989 and 1990. 26 As to the police search in June 2005, the knife and toy pistols seized by the police have been returned to Mr Porquet, and no charges have been laid in respect of what he described as one and a half boxes of ammunition left after the police search in August 2004 of which he said he was unaware. This ammunition was, in any event, in his secure storage area. 27 I have also considered the evidence in relation to Mr Porquet's storage of firearms. The report of the firearms audit, undertaken in May 2003, states that the "police were pleased with the storage facilities for Mr Porquet's firearms". While uncovering several minor problems that Mr Porquet says were in part because of a misunderstanding (since the firearms and bolts were kept in different safes, albeit in the same secure room), the police were satisfied these matters would be rectified. 28 Mr Porquet moved to his property in late August/early September 2004. I accept his evidence that he needs a firearms licence for use on his farm in order to protect his orchards from pest damage and for the control of feral animals, as well as for occasionally putting down animals humanely, whether those he keeps at his property or those for whom he may be called out as the contact person for the local WIRES service. 29 In conclusion, weighing up the evidence, I am not satisfied that the issuing of a firearms licence to Mr Porquet poses any threat to public safety or would be contrary to the public interest. Decision 30 The Commissioner's decision to refuse Mr Porquet's application for the renewal of his Category ABC firearms licence is set aside.