CITATION: Black v Commissioner of Police, New South Wales Police [2004] NSWADT 42 DIVISION: General Division APPLICANT PARTIES: Russell Lindsay Black RESPONDENT Commissioner of Police New South Wales Police FILE NUMBER: 033247 HEARING DATES: 23/11/2003 SUBMISSIONS CLOSED: 11/24/2003 DATE OF DECISION: 03/04/2004 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 LEGISLATION CITED : Firearms (General) Regulation 1997 Firearms Act 1996 CASES CITED: APPLICANT REPRESENTATION: In person RESPONDENT M Buchanan, solicitor ORDERS: The Commissioner's decision to revoke Mr Black's Category H 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 H firearms licence held by Mr Russell Black. Mr. Black has held firearms licences since 24 April 1997. He was issued the licence in question on 30 March 1998. The licence was renewed in February 2003 and it would have been due to expire on 22 May 2008. However, this licence was revoked on 17 July 2003. Background 2 The decision to revoke Mr. Black's licence followed a search of his residence on 6 May 2003 by Australian Customs officers and NSW police officers. The search was instigated following the interception of a parcel in the mail from the USA. That parcel contained two firearm magazines that Mr. Black had purchased from an EBAY site. During the search of Mr. Black's residence, a disassembled .22 calibre AR-7 rifle was found in a locked camphor wood chest. This rifle was unregistered and had been purchased by Mr. Black in February 1990. The search also revealed a silencer and ammunition. Mr. Black had purchased these items from a registered gun dealer in Caboolture, Queensland. Mr. Black produced the original receipt for the purchase. During this search it was also detected that two boxes of .357 calibre ammunition and one box of .45 calibre ammunition were being kept on top of a gun safe within a wardrobe. 3 Mr. Black was subsequently charged and on 30 May 2003 he appeared before the Waverley Local Court for the offences of "Possess unauthorised firearm- prohibited firearm"; "Possess/use prohibited weapon w/o permit"; "Category C, D or H licensee not comply with storage needs"; and "Possess ammunition w/o holding licence/permit/authority". Mr. Black agreed with the full facts in relation to each summons resulting from the incident and entered into a plea of guilt to each matter. He was convicted of each offence and fined the sum of $1000 for each of the first two offences and $100 for each of the other two offences. The Commissioner's delegate made the decision to revoked Mr. Black's licence on 17 July 2003. 4 On 18 July 2003 Mr. Black sought an internal review of the Commissioner's decision to revoke his licence. The internal review was finalised on 26 August 2003 and the decision was taken that the original decision was to stand. Mr. Black applied to the Tribunal for review of that decision. 5 The facts of this matter are not in dispute. Mr. Black has had a long association with firearms. He has used firearms for 45 years without incident or misuse in relation to those firearms. He is an active member of the Parramatta Pistol Club. With the exception of the incidents associated with this particular matter, there is no issue in relation to Mr. Black's conduct or character. Reviewable decision 6 The reviewable decision is that of the Commissioner to revoke Mr. Black's firearms licence. On 8 September 2003 Mr. Black applied to this Tribunal for review of the Commissioner's decision. The matter was listed before the Tribunal's Deputy President on 30 September 2003 at which time she made directions for the filing of documents and the matter was listed for hearing. The matter subsequently came before me for hearing on 24 November 2003 and proceeded on that day. Applicable Legislation 7 Section 63 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") 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." 8 The legislation of most relevance to these proceedings is the Firearms Act 1996 ("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". 9 Section 7(1) of the Act provides that a person must not possess or use a firearm unless the person is authorised to do so by a licence or a permit. 10 Section 11(5)(b) of the Act provides: " 11 General restrictions on issue of licences (5) A licence must not be issued to a person who: (a) … (b) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law". 11 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, …" 12 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. 41 Category C, D and H licence requirements (1) The holder of a category C, category D or category H 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 steel safe of a type approved by the Commissioner and that cannot be easily penetrated, (b) such a safe must be bolted to the structure of the premises where the firearm is authorised to be kept, (c) 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 safe containing any such firearm, (d) such other requirements relating to security and safe storage as may be prescribed by the regulations. Maximum penalty: 50 penalty units or imprisonment for 2 years, 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. 13 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." 14 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: (a) for any reason for which the licensee would be required to be refused a licence of the same kind, or (b) if the licensee: (i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or (ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or (iii) contravenes any condition of the licence, or (c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or (d) for any other reason prescribed by the regulations. …" 15 Clause 5(a) of the Regulation prescribes: "5 Offences that disqualify applicants For the purposes of sections 11 (5) (b) and 29 (3) (b) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales: (a) Offences relating to firearms or weapons An offence relating to the possession or use of a firearm, or any other weapon, committed under: (i) the law of any Australian jurisdiction, or (ii) the law of any overseas jurisdiction (being an offence that, had it been committed in Australia, would be an offence under the law of an Australian jurisdiction)." 16 The Commissioner may also revoke a firearms licence on public interest grounds pursuant to clause 17 of the Regulation. Clause 17 provides as follows: "17 Revocation of licence - additional reasons In accordance with section 24(2)(d) of the Act, a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is issued to continue to hold it." Mr. Black's case 17 Mr. Black relied on a statement dated 11th November 2003 which purported to address some of the Commissioner's concerns and provides a reasonable outline of his case. That statement provides: "With reference to the above matter to be heard on 24th November 2003 at 10.00 am I would like to respond to the Internal Review - Statement of Reasons dated 26th August 2003. I have lodged this appeal on the basis that it is erroneous, subjective, some detail is irrelevant or has been misconstrued in arriving at the final decision. My response to the appropriate paragraph numbers are as follows: 1 My Firearms Licence was revoked as a result of an Interim Apprehended Violence Order being taken out by my wife. The matter went to court and did not proceed. As a consequence my Licence was reinstated. It should be noted that the revocation of this Licence was not as a result of any criminal use or other misuse of a firearm. 4.4 It should be noted that this firearm and accessories were purchased in February 1990 and at the time it was not unlawful to possess such a firearm and accessories. Additionally, a receipt for this purchase was provided to the searching officers to validate this purchase. It should be noted that this firearm and accessories was purchased legally, from a Firearms Dealer. 4.5 It is a well known fact that this type and model of firearm has an inherent jamming problem on reloading. This matter is well documented on a number of web sites. 4.6 The two boxes of ammunition found with the firearm, were both purchased at about the time of the purchase of the firearm. I would suggest that as these boxes of ammunition are in the possession of the Police, they will be able to confirm that the ammunition is older than 10 years. 7.9 It should be noted that this ammunition was purchased the afternoon prior to its detection by the Police and it had been placed the previous evening on top of the gun safe in order for it to be stored for safekeeping. Normally ammunition is appropriately stored in the safe. 7.10 Contrary, to your comments that you "cannot place any weight on my advice that the firearms had not been used in the last 12-13 years". I refer you to my comments on paragraph 4.6. I suggest that the evidence is already in the hands of the Police so if need be, they can investigate. If the firearm had been used recently, I would suggest that the ammunition would be fresh or recently purchased ammunition, not ammunition that was older than 10 years. Additionally, I make reference to the subjective comments, regarding my failure in obtaining an appropriate licence for the firearm was not merely an oversight. I will contend that yes, I was aware that I could either make a licence application and there was a gun buy-back scheme in place. Again I will indicate, that I didn't get around to doing anything about it. It was not a matter of being ignorant of the Act; it was a matter that I didn't get around to doing anything about it. 7.11 I find this paragraph somewhat subjective as your comments rely on my education and work history, which I believe are irrelevant. Additionally, I admit that I was somewhat lax about registering a firearm, which was not operational, albeit that it was also found in a dissembled state and had not been used for many years. This fact should be able to be verified by your ballistics section as Police are still in possession of this firearm. 7.13 My recent advice from the Firearms Registry indicated that this firearm could be registered under a "Category C", this is contrary to your comments in this paragraph. 7.14 I refer you to my comments in my response to Para 7.11. I will say that is was not my top priority to register or dispose of this firearm. 7.15 Again your comments are subjective in the matter of the "silencer". I have already indicated to you and the Police that this silencer was purchased legally with the firearms when purchased in 1990 and a receipt has been provided. I suggest that this question is adequately answered in The Record of Interview conducted May 7, 2003, in Q42, and Q43. It appears that you have not read this document which is of some significance I would have thought. 7.17 I allude to your ignorance of the circumstances in the event, again this butterfly knife was purchased legally and had for may years been in the tool box of my car and no thought was ever given to the fact that I still had it in my possession after so long, as I never used my tool box on a daily basis. It was not until the police conducted a search of my vehicle that a butterfly knife was found in the tool box in the boot of my car. Hardly a place to keep such a weapon if I was going to use it for a criminal purpose. I will go so far as saying that I have more menacing looking knives in my kitchen, which are available from any kitchen supply or department store. 7.18 I note your comments and indicate with reference to my para 7.17 that I had this knife in my possession for possibly 15 years without incident, a period to which you could say that it was not, in this incidence, a threat to public safety. 7.24 You will note that these items have been in my possession for a number of years without any incident in relation to the public and probably would not have, if it was not for search of my residence by nine (9) officers. 7.25 I correct your comments that ammunition was kept on top of my safe, I refer you to my para 7.9, it was placed there the evening before the search. Your inference suggests that this was the place for long term storage. 7.26 Your comments again are subjective in relation to your assumed level of my intelligence 7.27 I dispute that the storage of the firearm and ammunition proved a constant threat to public safety. I live in a high security complex on the 12th level which has limited access to each floor. I am unaware of any person feeling that they were under threat from the possession of this weapon as no other person was aware of its existence other than myself. Additionally, it had been in my possession many years without incidence until it was found by nine (9) investigating officers. 7.28 This also includes 7.29. You say no satisfactory explanation, I say the weapon was not operational, in pieces and as a result, little thought was given to changing the storage requirements for that weapon, albeit that prior to the legislation coming in, in 1996, these storage requirements would have been deemed more than satisfactory. 7.32 I believe that in all of my submissions to date I have provided adequate and an honest account of the events in relation to the possession and storage that all firearms in my possession were in one way or another found to be in a locked safe or cabinet. 7.33 I dispute your comments. 7.36 My firearms licence does allow me to be in possession of 22 cal ammunition, contrary to your comments. Also refer my para 4.6 and 5.10 additionally your comments are ambiguous and I do not understand your point. 7.37 Your comments regarding my level of intelligence are irrelevant in this matter. If magazines are available on a web site in America and they are available from your local gun shop in Sydney at the retail level. There could be a reasonable assumption that I should be able to import these items, I was unaware that I had to be in possession of a letter from the Attorney Generals Office providing permission to import these magazines. 7.38 At the time, I would have been licensed and able to purchase such magazines from any Gun retail outlet in Sydney. 7.41 No other person has indicated to me that any person was specifically compromised by my actions or that the incidents were catastrophic in this incidence. 7.42 I dispute your comments re unsafe and irresponsible possession of a firearm. I find your overall comments out of touch with the actual circumstances and events that have transpired in relation to this matter." 18 Mr. Black also provided oral evidence and submissions in support of his case. In his evidence he developed his argument about the nature of the items that he had purchase on EBAY and the availability of the items in Australia. He supported his argument with print-outs of articles related to the AR-7 rifle including reference to the jamming problem referred to in Mr. Black's written submissions. Mr. Black also provided photographs of a disassembled AR-7 rifle and also of the accessory items that he had purchased off EBAY. This material was said to support Mr. Black's contention that AR-7 rifles and their accessories are readily available for purchase. 19 Mr. Black argued that it is clear from the evidence that he had a gun safe that complies with the legislative requirements but that he had failed to store the recently purchased ammunition in the safe. He is aware of his obligations to safely store his firearms. He had two firearms that were correctly stored in the gun safe. 20 Mr. Black asked the Tribunal to note that the AR-7 rifle was found in a disassembled state in a box with a number of family historical items and that it had been in that disassembled state for many years. He said that about a year ago he noticed an increased interest in AR-7 rifles and that there was now a sporting version. He described himself as a "gun nut" and said that he had become aware that it was possible to dress the rifle up to look like the sportier models. The accessories change the profile. He purchased a pistol grip, stock and magazines. Customs intercepted the magazines and this lead to the search of his premises. He said that the items he purchased are readily available through gun suppliers in Sydney. He was able to obtain them at a cheaper price by buying over the internet so he adopted that approach. His omission was that he did not obtain the Attorney general's permission to import the items. He was not aware of the restriction on importing these items. 21 Mr. Black conceded that he had been charged and convicted of the offences as the Commissioner has asserted. He also conceded that the firearm for which he had purchased the imported accessories was not registered. He argued that he is in fact licensed to .22 calibre ammunition. He submitted that it is not in dispute that his operational firearms were stored correctly. The storage issue relates to the non- operational AR-7 rifle. Mr. Black further argued that the AR-7 rifle was in fact appropriately stored as it was in a locked box that is approximately 1.5 metres in length and would take two people to lift. The firearm was hidden in the bottom of the box under other items. He lives in a building that is totally secure and where the risk of theft is minimal. 22 Mr. Black conceded that he was aware of the amnesty in relation to unauthorised and prohibited firearms but did not take advantage of the amnesty because he did consider it a priority. 23 Mr. Black put in evidence the record of interview that was conducted on 7 May 2003. He asked that this be taken into account and stated that this record of interview was not taken into account by the delegate who undertook the internal review. He also stated that the record of interview incorrectly states that the AR-7 rifle was purchased in Adelaide when in fact it was purchased in Queensland. 24 Mr. Black submitted that the Tribunal must assess whether he presents any threat to public safety. He submitted that it is reasonable for the Tribunal to conclude that he presents virtually no risk to public safety. The Commissioner's case 25 The Police Service's file was put in evidence and the Commissioner relied on the documents contained within that file. With the exception of the particular circumstances of the case, there is no general suggestion that Mr. Black is not a person of good character. Ms. Buchanan, for the Commissioner, argued that it is highly significant that convictions were recorded against him in relation to the possession of unauthorised firearm and prohibited firearm and the breach of the storage requirements. The Commissioner considers that there is a public interest issue to be considered and that the interest of public safety must outweigh any personal interests that Mr. Black might have in possessing his firearm. The Commissioner has concerns about Mr. Black being the holder of a firearms licence due to his failure to comply with the legislative requirements. 26 Ms. Buchanan provided written submissions in support of the Commissioner's case and those submissions provide a reasonable outlined of the Commissioner's case. Ms. Buchanan's submissions stated: " Grounds for Revocation The Respondent relies on section 24(2) (a) of the Firearms Act 1996 which provides as follows: 2) A licence may be revoked: (a) for any reason for which the licensee would be required to be refused a licence of the same kind. Section 11 deals with restrictions on the issue of licences. Section 11 (5) provides that the Commissioner of Police must refuse to grant a licence if the licensee has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law. You must look to Clause 5 of the Firearms Regulation 1997, which deals with prescribed offences. Clause 5(a) provides that a prescribed offence for the purposes of the Firearms Act 1996 is "An offence relating to the possession or use of a firearm, or any other weapon, committed under: (i) the law of any Australian jurisdiction, or (ii) the law of any overseas jurisdiction (being an offence that, had it been committed in Australia, would be an offence under the law of an Australian jurisdiction). The Applicant was convicted of 4 prescribed offences and therefore section 24(2) gives the Commissioner of Police a discretion to revoke the Applicant's licence. The Respondent also relies on Section 24(2)(b)(ii) which provides that the Commissioner may revoke a firearms licence if the licensee contravenes any provision of the Act or the Regulations, whether or not the licensee has been convicted of an offence. Section 7(1) of the Firearms Act 1996 states that a person must not possess or use a firearm unless the person is authorised to do so by a licence or permit. The Applicant was not authorised to possess or use the .22 calibre Charter arms explorer semi automatic rifle. This is a prohibited firearm. Section 41(c) states that a holder of a Category H licence must store any ammunition for a firearm in a locked container of a type approved by the Commissioner and that is separate from the safe containing any such firearm. The applicant left 2 boxes of ammunition on top of his gun safe. He has indicated that he purchased the ammunition the afternoon before his premises were searched and while intending to place the ammunition in the safe he forgot to do so. Exercise of Discretion The Commissioner of Police exercised discretion in revoking the applicant's licence. The legislation provides no guidance as to how that discretion should be used however the respondent submits that it is appropriate to look at the decision of Cusumano v The Commissioner of Police, New South Wales Police Service [2001] NSWADT 50. This matter involved the exercise of discretion. The Tribunal indicated that the discretion should be exercised in a way, which promotes the principles and objects of the Act. The principles and objects are set out in section 3 in the following terms: (1) The underlying principles of this Act are: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety: (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, and (c) to facilitate a national approach to the control of firearms. (2) The objects of this Act are as follows: (a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances, (b) to establish an integrated licensing and registration scheme for all firearms, (c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm, (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms, (e) to ensure that firearms are stored and conveyed in a safe and secure manner, (f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms. The Respondent submits the Commissioner made the correct and preferable decision in revoking the applicant's licence as it best promotes the objects and principles of the Act. By his own admission the applicant has been a keen shooter since he was 8 years old and he has made a hobby out of his firearms. A person with the experience of the Applicant should have known that his actions were a breach of the Firearms Act. Indeed the Applicant has admitted that he knew the rifle could be registered under category C of the Firearms Act but described his inaction as an "omission and oversight". The Respondent puts little weight on this given that the applicant has admitted to having the rifle in his possession for 12-13 years. He also indicated that the rifle had been in a locked wooden chest in his lounge room for many years along with 2 boxes of ammunition. The Applicant has argued that the rifle had not been used for approximately 12-13 years and had been unassembled as there was a fault in the firing mechanism which was never repaired. Whether the rifle was inoperable or not, it is still considered a firearm and the applicant was not licensed to possess or use it. Nor did he have an authority to have the silencer. In any event, the firearm, silencer and ammunition were not kept safely. One concern the Respondent does have is why the applicant imported two .22 calibre magazines. Since his two pistols use.45 and.357 ammunition one would assume that the .22 calibre magazines were for the .22 charter Arms self-loading rifle. There is further evidence, which indicates the 2 magazines imported from the US were for his prohibited rifle. I refer to you to the applicant's response to questions 25 in the police record of interview dated 7 may 2003. When asked how may rounds of ammunition do the two clips which he purchased and posted from the US for that rifle held he answered 10. In response to question 20 the applicant indicated that "As I have always had an interest in this weapon over the last couple of years I have noted that certain components that could be added to the gun were available on Ebay and freely available in the US. In recent times I have purchased both the gun stock and more recently two ammunition clips which were subsequently intercepted by customs". The existence of a silencer also raises some concerns. As pointed out in the Statement of Reasons in the Internal Review, there has been at least one amnesty and possibly more during the time in which the applicant had possession of the rifle. The rifle could have been handed in "no questions asked" but was not. It would appear that the Applicant knowingly kept an unregistered prohibited rifle, silencer and ammunition in his home when he was not licensed to do so. He clearly breached the law for a considerable period of time and the Local Court saw fit to record a conviction in respect of each charge. It is relevant that he was previously charged and found guilty of possessing a prohibited weapon. Arguably, one would assume that if you were charged with possessing a prohibited weapon you would make sure that you were aware of what constituted a prohibited weapon and remove any that may be in your possession. His butterfly knife was taken away but he kept a prohibited rifle, ammunition and a silencer. The applicant's behaviour posed a risk to the public as the weapons could have been stolen from his home. Whilst the applicant may argue that he rifle was inoperable the respondent would submit that it still posed a threat as it could have been fixed. It should also be noted that the applicant did not mention in the Record of Interview that the rifle was inoperable. Nor is this indicated in the police fact sheet. In any event there was also 2 boxes of .22-calibre ammunition, which could have been stolen, and a silencer, which poses a very high risk to the public if it was taken by criminals. The fact that the applicant left ammunition for his pistol on top of his gun safe is of concern. It posed a threat to public safety. Had the applicant's house been broken into, 2 boxes of ammunition could have been stolen from on top of the gun safe. In this respect the respondent relies on the matter of Phegan v The Commissioner of Police [2002] NSWADT 127. In this case the Tribunal held that: "for the Tribunal to set aside a revocation decision based on failure to store firearms safely an applicant must show that there are persuasive and relevant considerations which take their matter outside the ordinary case". The respondent respectfully submits that forgetting to put the ammunition inside the gun safe is not a persuasive and relevant consideration. Also we have only the applicant's word that the ammunition was only left on top of the safe overnight. When assessing this comment one must also consider that the applicant was aware that he had in his possession a rifle which he was unlicensed to possess, ammunition and a silencer yet over 12-13 years he just never got around to either trying to get it registered or to surrender it during one of the buy back periods. One must question whether the applicant usually stores his ammunition in a safe when he has left 2 boxes of .22 ammunition in a wooden box in his lounge room for "many years". The behaviour is not consistent. In the event that the Tribunal intends to rely on the reasoning in the matter of Commissioner of Police v Uzelac [2003] NSWADT 226 the Respondent wishes to make the following comments: This decision contained what could be described as two tests, the first being the test referred to in the matter of Phegan re persuasive and relevant considerations and the second test was whether there was a risk to the safety of the public if the applicant retains the licence. The respondent would firstly submit that this case can be distinguished from Uzelac. Uzelac involved a Master Security licence holder who breached his safe keeping requirements by storing ammunition in an unlockable draw inside a safe. There was evidence led as to the substantial security measures in place. In the matter before the tribunal the safe was not protected by further security measures as in Uzelac and further, the Applicant left the ammunition in boxes outside the safe, totally unsecured. For those reasons the respondent would submit that the case can be distinguished. If the Tribunal still considers the principle in Uzelac to be applicable regardless of whether it can be distinguished then the Respondent would submit that there is a risk to the safety of the public if the applicant retains the licence. He has shown a lax attitude towards safekeeping and by his own admission this has been the case for a number of years. Given the length of time the applicant had possession of a prohibited firearm silencer and ammunition, his knowledge that he was not licensed to do so and comments that he just did not get around to doing anything about the rifle and accessories and his indication that the buy back scheme and registration of the rifle was not his "top priority" the respondent submits that there is an appreciable risk to public safety if the applicant retains his licence. His firearm licence was previously revoked when his wife took out an interim AVO, yet he still retained possession of a prohibited firearm. He was previously found guilty of possessing a prohibited weapon and still he retained possession of the silencer and rifle. The Respondent submits that the possession and use of a firearm is a privilege, which is conditional on the overriding need to ensure public safety. The Applicant's actions and lax attitude towards firearms safety and possession have involved the abuse of that privilege. He has therefore forfeited the privilege to possess and use firearms. Lastly, it should also be noted that the Applicant's licence is due to expire on 22 May 2008. If the applicant should re-apply for a licence at the expiration of this licence then the Commissioner of Police must refuse his application, as he will have been convicted of a prescribed offence within a period of 10 years from the date of application. He will be excluded from being given a firearms licence until 25 June 2013. There is a clear intention by Parliament to exclude those people who have been convicted of a prescribed offence from holding a firearms licence for a period of at least 10 years from the date of conviction. In this case the applicant renewed his licence in the same months that he was charged with these offences. It would be against the intention of Parliament to allow the Applicant to retain his licence for the next 4.5 years knowing that when the licence expires the Commissioner must refuse his re-application due to his convictions. The respondent submits that Parliament intended that the licence be revoked in these circumstances and it cases such as this that the discretion was intended to be used to revoke a licence. Had the applicant's licence expired just one month later, his renewal application would have been refused on a mandatory basis. Relying on the matter of Botros v Commissioner of Police the Respondent submits that the fact that he applicant was convicted of 4 prescribed offences compels a revocation. In Bostros a security guard was convicted of a prescribed offence just 5 weeks after he received his security licence. The Tribunal stated: "In this case if the applicant had committed the offence before applying for the licence granted on 4 Mach 1999, he would not have been granted the licence. The legislature has seen fit to ensure that the result would have been mandatory, and is mandatory for a period of 10 years from the date of the conviction. It would be anomalous if despite the committing of a prescribed offence barely 5 weeks after the grant of a licence, the applicant were to retain his 5 year licence. Conceivably some circumstances could justify such an anomaly. That is no doubt why the legislature in its wisdom has used the language of discretion in section 26(1) of the Act. The circumstances of this case do not in my opinion justify a decision not to revoke the licence. Rather, in my opinion they compel a revocation ". Response to submissions filed by the Applicant 4.4 The applicant has indicated that when the rifle and accessories were purchased in 1990 it was not unlawful to possess such a firearm and accessories. In relation to NSW I respectfully disagree. At this time the Firearms Act 1989 was in force. Section 5 provided that a person shall not possess or use a firearm unless authorised to do so by licence or permit. So long as he lived in NSW the applicant was required a licence to possess or use a firearm. Looking at the educational details of the applicant (behind third last tab) it is noted that he has a number of Certificates and Masters from a number of educational institutions in Sydney which would indicate he resided in NSW for the majority of his time at least since 1992. Further a silencer was a prohibited weapon in NSW at that time. Please refer to section 31 of Schedule 1 of the Prohibited Weapons Act 1989. 4.5 Not relevant 4.6 The age of the ammunition is not relevant. What is relevant is that the applicant was not licensed to possess or use the firearm in question, nor was he authorised to possess or use the ammunition. He was convicted in relation to this offence. 7.9 The applicant indicates that the ammunition he purchased for his pistol was purchased the day before the search and it is normally stored in the safe. Firstly if the ammunition is usually stored in the same safe that contains the pistols then it is not appropriately stored. Secondly there is no evidence that the applicant purchased the ammunition the day before. No receipt has been provided, nor a statement from the person the applicant purchased it off. Regardless, forgetting to put your ammunition in the safe is not a relevant or persuasive consideration. 7.10 In respect of whether the rifle had been used in the last 12-13 years, it is not the job of the police to investigate whether it has been used. The fact is that the applicant was convicted of possession in relation to this firearm and he was not authorised to do so. In respect of the rifle, the applicant concedes that he could make an application for a licence and that there was a gun buy back scheme in place. He indicates he was not ignorant of the Act, he just didn't get around to doing anything about it. The respondent submits that he had a very long time in which to do something but he did not. This is not an acceptable excuse. It shows a very lax attitude towards the Firearms Act and firearm safety. 7.11 The applicant indicates that his education and work history are irrelevant. The respondent wishes to indicate that the applicant raised these in his letter dated 18 July 2003 in requesting an internal review. He obviously thought they were relevant then. He also indicated he is a JP and the fact that he has recently sold his interests in three Private Hospitals in Melbourne. All these issues were raised first by the applicant. The applicant concedes that he was "somewhat lax about registering a firearm" which he describes as not operational and was found in a disassembled state. He then indicates that the ballistics section should be able to verify this. With respect it is not up to the police to prove this. The applicant has been convicted of possess unauthorised firearm- prohibited firearm. Whether the applicant actually used the weapon is of little significance given the time period he possessed the weapon. Further, it is not likely that the applicant purchased a firearm, silencer and ammunition if the firearm did not work ... so it is reasonable to suspect that now that the applicant describes the firearm as having a fault in the firing mechanism that was never repaired that he used it in the past. 7.13 The applicant indicates that he has received advice from the Firearm Registry that the rifle could be registered under a Category C and that this is contrary to the comments made in the internal review. Whilst this is not significant, the respondent submits that Schedule 1 of the Firearms Act 1996 indicates that the rifle is prohibited. It should be noted that all firearms that may be considered Category C firearms are prohibited except in limited circumstances. To be considered a Category C firearm it must have a magazine capacity of 10 rounds or less. Further, the applicant was charged and convicted of possess unauthorised firearm- prohibited firearm. 7.14 When the issue of a gun amnesty was referred to in the internal review the applicant has indicated that registering or disposing of the firearm was not his top priority. Considering it was never done and it was this way for number of years, it appears it was not a priority at all. It is interesting to note that in the record of interview the applicant indicated in response to question 24 that he was aware that it should have been handed in during the firearm amnesty. 7.15 Whether or not the silencer was legally purchased, it was kept illegally whilst it was in NSW. See response to 4.4 it has been a prohibited weapon since 1989. 7.17 The applicant now makes reference to butterfly knife and his finding of guilt in the local Court in 1997. We are not interested if the knife was bought legally, the fact is it was a prohibited weapon at the time the police found it. Whether the applicant has more menacing looking knives in his kitchen is of no relevance. 7.18 Whether or not the possession of a knife over 15 years is a threat to public safety is not for the tribunal to decide. The local court decided that the applicant had possession of a prohibited weapon and the local court agreed finding the applicant guilty but not recording a conviction. 7.24 The applicant says that the rifle and accessories were in his possession for a number of years without any incident in relation to the public and all would have been fine had the officers not searched his premises. This is of some concern. It would appear that had the search not taken place the rifle, ammunition and silencer would most probably still be there in his lounge room. 7.25 As previously indicated the applicant states that the ammunition for his pistol was placed on top of the safe the night before the search. He indicates he just forgot to put it in the safe, as he usually does. The respondent submits that it is open for us to argue that given the inaction in relation to the rifle and accessories the applicant was not in a hurry to put the ammunition away. 7.26 Not relevant. The applicant has conceded that he was aware that he could hand the rifle in an amnesty or try to get it registered. His level of intelligence is not in question. 7.27 The rifle, if it could be registered would be under Category C. The safe keeping requirements for a such a firearms are as follows: (a) when any such firearm is not actually being used or carried, it must be stored in a locked steel safe of a type approved by the Commissioner and that cannot be easily penetrated, (b) such a safe must be bolted to the structure of the premises where the firearm is authorised to be kept, (c) 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 safe containing any such firearm, (d) such other requirements relating to security and safe storage as may be prescribed by the regulations. The Applicant kept the rifle, ammunition and a silencer in a locked wooden chest in his lounge room. Also contained in this box was a pistol grip and stock. The firearm and accessories were not contained in a steel safe as required by the act, it was not bolted to the premises and the ammunition was not kept separately from the firearm. The applicant breached the safe keeping requirements of the Act. 7.28 The applicant indicated that because the rifle was not operational, in pieces and as a result little thought was given to changing the storage requirements. He indicates that prior to the 1996 legislation the storage requirements were more than adequate. This is not the point. The rifle is still a firearm whether it is in pieces or not and the legislation clearly indicates what is required. Further, the applicant continued to purchase accessories and ammunition for an allegedly inoperable firearm. This would indicate that the applicant may have had the intention of repairing the firearm. 7.32 The Applicant believes that all firearms in his possession were in one way or another found to be in a locked safe or cabinet. 2 boxes of ammunition for his pistol was found not stored or locked in a safe or cabinet, one wooden box was found to contain a prohibited firearm, prohibited weapon and ammunition for a prohibited firearm. This may have been in a locked wooden chest but the chest was not secured to the ground and in no way did it comply with the safe keeping requirements. 7.41 The applicant has indicated that that no other person has indicated to him that any person was specifically compromised by his actions or that the incidents were catastrophic in this instance. 7.42 In the Internal review, the reviewer indicated the applicant's behaviour for which he was convicted involved unsafe and irresponsible possession of a firearm. The applicant denies this comment. The applicant has shown no remorse, further he has defended his conduct at every opportunity. This does not give the respondent confidence in his ability to adhere to the legislation should his licence be returned to him. In the circumstances the Commissioner made the correct and preferable decision." 27 Ms. Buchanan also presented oral submissions which reinforced the Commissioner's position. In response to Mr. Black's evidence that information with respect to the dismantling of the firearm is readily available on the internet, Ms. Buchanan submitted that this adds an extra cause for concern in that instructions on how to assemble the rifle provides a serious safety issue should the firearm be stolen. Ms. Buchanan further submitted that the security of Mr. Black's residence is not in issue in this matter. What is of concern is his failure to comply with the applicable legislation. It is of particular concern that Mr. Black continued to hold a prohibited firearm even after he had had another prohibited weapon ceased. 28 Ms. Buchanan argued that the Local Court has found the offences proven in Mr. Black's case. The fact of Mr. Black's conviction is sufficient to warrant the revocation of his licence. This is not intended to punish Mr. Black. It is an administrative function in upholding the requirements and provisions of the Act. The Tribunal should conclude that the decision to revoke Mr. Black's licence was the correct and preferable decision. Nature of proceedings 29 I note that Ms. Buchanan made reference to the decision of the Deputy President in the matter of Phegan as authority for the principle that for the Tribunal to set aside a revocation decision based on failure to store firearms safely an applicant must show that there are persuasive and relevant considerations that take their matter outside the ordinary case. I considered this argument in some detail in my reasons for decision in the matter of Hart -v- Commissioner of Police, New South Wales Police Service [2003] NSWADT 114. I do not propose to repeat that analysis here, however in Hart I expressed the view that these are not adversarial proceedings in which Mr. Black carries an onus of proof. 30 Mr. Black does not take on the responsibility of having to prove a case, nor does he cause the Commissioner to have to prove a case. Mr. Black and the Commissioner are before the Tribunal as parties by virtue of section 67(2) of the ADT Act. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the Commissioner's decision is correct. 31 I must consider all relevant circumstances and the subject matter of Mr. Black's contravention and subsequent conviction is a highly relevant consideration. Since breaches of the firearms legislation erode the protection of public safety, there would need to be other persuasive considerations before I would be prepared to set aside the Commissioner's decision. Findings Generally 32 I have considered all of the evidence and the oral argument presented before the Tribunal. In particular I have reached the following findings of fact: - Mr. Black was issued with a Target Pistol Licence on 24 April 1997; - on 26 June police were notified of an assault committed by Mr. Black on his wife and that as a result Mr. Black became subject to an Interim Apprehended Violence Order from that date until 9 July 1997; - on 9 July 1997 Mr. Black appeared before the Local Court at Waverley where he was found guilty of the offences of assault and possessing a prohibited weapon without a permit; - on 1 September 1997 Mr. Black's Target Pistol Licence was revoked; - Mr. Black appealed the revocation of that licence to the Local Court at Waverley and on 19 November 1997 his appeal was upheld; - Mr. Black was issued with a Category H firearms licence on 30 March 1998 and this licence was renewed in 2003; - on 25 June 2003 Mr. Black appeared before the Waverley Local Court where he was convicted of the following offences: i) Possess unauthorised firearm- prohibited firearm for which he was fined $1,000 ii) Possess/use prohibited weapon w/o permit for which he was fined $1,000 iii) Category C, D or H licensee not comply with storage needs for which he was fined $100 iv) Possess ammunition w/o holding licence/permit/authority for which he was fined $100 - on 17 July 2003 Mr. Black's Category H firearms licence was revoked; - apart from these convictions and previous offences Mr. Black is otherwise of good character; - Mr. Black has never been issued with a licence authorising the possession and/or use of long-arms and/or their ammunition since the time such requirements became law. 33 The principal issue that I have to decide is whether there is a risk to the safety of the public if Mr. Black's licence is reinstated. Before a licence is issued, the Commissioner must conclude that there is virtually no risk to the public associated with the issue of the licence. In these matters the Tribunal stands in the shoes of the Commissioner and must assess that risk. The likelihood of risk must be assessed by reference to Mr. Black's prior conduct. 34 Mr. Black has breached certain provisions of the Act in relation to possession of prohibited weapons and safe keeping of firearms and he was convicted of those offences. He was aware of his responsibilities with respect to the safekeeping of firearms but chose to not comply with his obligations. He was also aware of the amnesties that were in place while he was in possession of the prohibited firearms but failed to take advantage of those amnesties. Against this must be weighed his undisputed good character; his history of firearms use that is incident free but which is overshadowed by this failure to comply with the legislative requirements regarding the possession and storage of firearms. 35 One of the underlying principles of the Act is the improvement of public safety by by imposing strict controls on the possession and use of firearms, and promoting the safe and responsible storage of firearms. Ensuring that only permitted firearms are in the possession of licensees and that those firearms are stored in a safe and secure manner decreases the likelihood that they may be used in committing serious offences against the community. It is clear from the legislation that Parliament has identified these matters as central and critical objectives of the legislation. Those principles and objectives have been reinforced in numerous decisions of this Tribunal. Mr. Black's offences must be viewed with reference to them. Parliament did not leave the matter of what firearms may be held or the manner in which firearms are to be stored to the discretion of licence holders but instead elected to impose detailed and prescriptive requirements on all licences. 36 In this case it could not be said that Mr. Black has acted in complete disregard of the statutory requirements to safely store his firearms. He has clearly taken steps to obtain a licence and to have his operational firearms registered. He has also obtained appropriate storage for those firearm. Nevertheless, he made a conscious decision to not comply with what he knew to be his obligations. 37 The fact remains that Mr. Black was convicted of offences relating to possession of prohibited firearms and not keeping his firearm safely. While I accept Mr. Black's evidence in regard to the security of his premises, it is still conceivable that his firearms and ammunition could have been stolen and that severe consequences could result from such a theft. The fact that Mr. Black usually stored his firearm safely does not diminish the gravity of that fact. I am particularly concerned that Mr. Black continued to hold prohibited weapons even after another prohibited weapon owned by him had been confiscated. 38 On his own admission Mr. Black has vast experience in the use of firearms and is knowledgeable of the legislative requirements. In my view his conduct shows disregard for the requirements of that legislation. It is also my view that it is probable that Mr. Black intended to reassemble the AR-7 rifle. There is no other obvious plausible explanation for his decision to acquire accessories for the rifle. That being the case, it is irrelevant that the rifle has been dismantled for many years or that the ammunition is also very old. In my opinion, the heavy fines imposed by the Local Court have correctly assessed the gravity of these offences. 39 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. On the evidence presented I accept that Mr. Black was aware of the statutory obligations. Nevertheless, his actions suggest that he did not fully appreciate the importance of strict observance of those obligations. Having weighed the evidence, it is my view that that the gravity of Mr. Black's offences outweigh the other relevant factors. 40 I appreciate that this decision may well lead to harsh consequences for Mr. Black in that a mandatory refusal will result if he should reapply for a firearms licence within the near future. In any event, Mr. Black would have faced this consequence when the licence otherwise expired in 2008. I also note that this consequence would be significantly different had the Local Court proceedings not lead to a conviction. This is an unfortunate outcome for Mr. Black, however I am unable to look behind the Local Court findings and the interest of public safety must outweigh any personal interests that Mr. Black might have in possessing his firearm. 41 It follows in my view that the correct and preferable decision is to revoke Mr. Black's firearms licence. Accordingly I affirm the Commissioner's decision. Orders 42 The Commissioner's decision to revoke Mr. Black's Category H firearms licence is affirmed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.