Gibson -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 212

CITATION: Gibson -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 212 DIVISION: General Division APPLICANT PARTIES: Russell William Gibson RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 023165 HEARING DATES: 08/10/2002 SUBMISSIONS CLOSED: 10/08/2002 DATE OF DECISION: 10/28/2002

BEFORE: Higgins 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 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Firearms (General) Regulation 1997 Firearms Act 1996 CASES CITED: Phegan v Commissioner of Police, NSW Police Service [2002] NSWADT 127 Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 APPLICANT REPRESENTATION: D McKay, solicitor RESPONDENT J Tunks, solicitor ORDERS: 1. Pursuant to s.57(1) of the Administrative Decisions Tribunal Act 1997 an extension of time be granted to Mr Gibson in which to make his application to 30 July 2002; 2. The Commissioner's decision to revoke Mr Gibson's category AB fireamrs licence be affirmed.

Background 1 On 30 July 2002, Mr Gibson lodged an application with the Administrative Decisions Tribunal ("the Tribunal") for review of a decision, made by a delegate of the Commissioner of Police ("the Commissioner") to revoke his category AB firearms licence. 2 Mr Gibson's application was made pursuant to s.75(1)(c) of the Firearms Act, 1996 ("the Firearms Act") and s.38 of the Administrative Decisions Tribunal Act, 1997. 3 The basis on which the Commissioner revoked Mr Gibson's firearms licence was the fact that on 29 January 2002, at the Warren Local Court, Mr Gibson had been found guilty of an offence of failing to keep his firearm safely pursuant to s.39(1)(a) of the Firearms Act. While Mr Gibson was found guilty of the offence charged, no conviction was recorded pursuant to s.10 of the Crimes (Sentencing Procedure) Act, 1999. However, Mr Gibson was placed on a good behaviour bond for a period of twelve months. 4 The grounds on which the Commissioner relied in making his decision were as follows: (a) that it was not in the public interest for Mr Gibson to continue to hold his firearms licence (s. 24(2)(d) FirearmsAct and cl 17 FirearmsRegulations); (b) that Mr Gibson had contravened a provision of the Firearms Act (ss. 24(2)(b)(ii) and 39); and (c) that Mr Gibson was subject to a good behaviour bond (ss11(5)(d) and 24(2)(a)). 5 Mr Gibson's application to the Tribunal was not made within the period prescribed by the rules of the Tribunal pursuant to s.55(1)(d) of the Administrative Decisions Tribunal Act, 1997. That is, Mr Gibson's application was filed outside the prescribed 28 days from which the internal review had been finalised. In this case the internal review was finalised on 8 May 2002 and Mr Gibson's application was not lodged until 30 July 2002. Accordingly, Mr Gibson had made an application under s.57 of the Administrative Decisions Tribunal Act, 1997 for an order that the time for making his application to be extended. Hearing 6 The matter was heard in Warren and at the commencement of the hearing Mr Tunks, for the Commissioner, indicated that the Commissioner had no objection to Mr Gibson being granted in extension of time in which the lodge his application. Mr Tunks also indicated that the Commissioner no longer sought to rely on the grounds that it was not in the public interest for Mr Gibson to continue to hold his firearms licence. 7 As a result of Mr Tunks' indication the abovementioned matters were not considered at the hearing and the appropriate order for an extension of time was made. 8 At the hearing the parties relied on material, which had been previously filed with the Tribunal. Mr Gibson also gave oral evidence and he was extensively cross examined by Mr Tunks. During the course of giving oral evidence, Mr Gibson also tendered into evidence several photographs of his Toyota Hilux ute. Evidence 9 Mr Gibson gave the following evidence: * He is 46 years of age and has been shooting for twenty years. He has held a firearms licence since 1993. § He resides at his own home at Warren and looks after his two youngest children, a daughter aged 17 and a son aged 13. He is employed on a part time basis by a shearing contractor as a casual shed hand. * He has invested about $14,400 in shooting equipment as he also earns an income as a part time professional shooter. This investment includes the purchase of his Toyota Hilux ute. He has earned about $8,000 of additional income per year from his shooting activity. * He is not able to read and write, which make his ability to earn income limited. * About a week before 24 July 2001, Mr Gibson decided that he would go shooting after work. At the time he was working at a nearby shearing shed and as he was going to work he took his two firearms, a 22 and a 222 from his locked gun safe in his home and placed them into his Toyota Hilux ute. He placed the 222 on the rack, which is located on the dashboard of the ute and he covered it with a towel. His 22 he placed under the seat. He also had ammunition for these firearms, which he had placed in a box and stored behind the seat. * He went to work at about 7.30am that morning and parked his ute in a position so that he could see it while he was working. The ute was also locked. * At about 5.30pm that afternoon he went shooting with his children to one of the remote properties in the area. That evening he used both firearms and shot pigs in traps and kangaroos. * He stated that he got home about 8.40pm that evening. He took his 222 firearm that was on the dashboard inside and locked it in his gun safe. He subsequently went back out to the ute, which was not locked, to collect his other firearm but could not find it in the ute. At the time he thought he may have mistakenly left it behind at the property. He only used the 22 to shoot pigs in a trap and he thought he may have accidentally left it behind after he shot one of the pigs in a trap and placed it at the side of his ute while he loaded the pig out of the trap. He also thought that one of the children may have accidentally knocked the firearm out of the front of the ute. * The following afternoon his employer gave him time off so that he could go to the property to see if he could locate the missing firearm. * He was not able to find the firearm and did not report it to the police because he thought it would turn up. § He stated that he was aware of the importance of guns not floating around in the community, but felt confident that he would find it somewhere in the paddocks. He stated that he was going to report it to the police, but felt reassured that he would find it in the paddocks. These paddocks he stated were isolated and not readily accessible to members of the public. * It was not until 24 July 2001, when the police came to visit him that he realised that his firearm had been stolen. The police informed him that the firearm was found the previous day and it was also found to have had both the barrel and stock cut and shortened. The police had charged a male person with the possession of the shortened rifle. * Mr Gibson was charged with an offence of failing to ensure the safe keeping of his firearm and on 29 January 2002 he pleaded not guilty to this charge. However, he was found guilty of the charge, without a conviction being recorded and placed on a good behaviour bond for twelve months.