Hoffman v Commissioner of Police, NSW Police Service [2003] NSWADT 89

CITATION: Hoffman v Commissioner of Police, NSW Police Service [2003] NSWADT 89 DIVISION: General Division APPLICANT PARTIES: Max Hoffman RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 023216 HEARING DATES: 19th December 2003 SUBMISSIONS CLOSED: 01/17/2003 DATE OF DECISION: 05/01/2003

BEFORE: Higgins S - Judicial Member APPLICATION: Firearms Act - firearms licence - issue of licence or permit - Firearms licence - issue 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 Whiteman v Commissioner New South Wales Police Service [2002] NSW ADT 179 CASES CITED: Ward v Commssioner of Police, New South Wales Police Service [2000] NSW ADT 28 Police v Toleafoa [1999] NSW ADT AP 9 O'Sullivan v Farrar [1989] 168 CLR 210 APPLICANT REPRESENTATION: N Butcherine, Solicitor RESPONDENT C McGoldrick, Agent ORDERS: The Commissioner's decision to refuse Mr Hoffman's application for a category A, B firearms licence is to be affirmed.

BACKGROUND 1 On 30 September, 2002 Mr Hoffman lodged an application with the Tribunal for review of a decision, made by a delegate of the Commissioner of Police ("the Commissioner") to refuse his application for a category A, B firearms licence. 2 The Tribunal has jurisdiction to hear this matter under s.75(1)(a) of the Firearms Act 1996 ("Firearms Act") and s.38 of the Administrative Decisions Tribunal Act, 1997 ("ADT Act"). 3 The basis on which the Commissioner refused Mr Hoffman's application for a firearms licence was Mr Hoffman's inability to satisfy the Commissioner that the storage and safety requirements set out in Part 4 of the Firearms Act were met by him and that the Commissioner considered that the issue of a licence was contrary to the public interest. The basis for the latter finding was Mr Hoffman being found guilty of several offences under the Firearms Act on 11 March 2002. 4 At the hearing of the matter the Commissioner did not press the storage and safety requirements as set out in part 4 of the Firearms Act. Accordingly, the issue for the Tribunal to determine is whether the Commissioner made the correct and preferable decision in refusing Mr Hoffman's application for a firearms licence on the grounds that it is not in the public interest for Mr Hoffman to be the holder of such a licence. EVIDENCE 5 The documentary evidence before the Tribunal consisted of: A copy of the Commissioner's brief of evidence. An affidavit of Mr Hoffman sworn on 16 December 2002. A copy of the transcript of proceedings on 11 March 2002, before the Coonabarabaran Local Court in respect of the charges that had been laid against Mr Hoffman and his son, Andrew Hoffman. 6 At the hearing Mr Hoffman also gave oral evidence and was cross-examined by Mr McGoldrick on behalf of the Commissioner. FINDINGS OF FACT 7 The Tribunal makes the following findings of fact in respect of matters which were not in dispute: (a) Mr Hoffman is 69 years of age and he has lived in Coonabarabaran for 43 years. He is also the owner of a rural property which is situated 17 kilometres from Coonabarabaran. He visits the property on a daily basis and his sons Andrew, age 28 and Toban, age 21, reside in the homestead on the property ("the property"). (b) Mr Hoffman has never made an application for nor has he been the holder of a firearm licence. Up until August 2001, he had possession of and was owner of eleven firearms, all of which he had had for many years. Most of these had been inherited by him from his father. The firearms were at all times located on the property and were regularly used by his sons. (c) Mr Hoffman's sons were not the holders of a firearms licence. (d) On 13 August 2001, following the receipt of a complaint, the Coonabarabaran police attended Mr Hoffman's property. They spoke to Mr Hoffman and his sons who cooperated fully. During the police visit, Mr Hoffman and his son produced to the police, from an unlocked room in the house, eleven firearms and packets of ammunition. The police observed that the firearms were stored on three rifle racks attached to the walls of an unlocked bedroom in the house. They also found the ammunition to be scattered on top of and in drawers and cupboards within this room. (e) Mr Hoffman and his son were both charged with offences under the Firearms Act. The offences laid against Mr Hoffman were as follows: Not keeping firearms safely; Possessing unauthorised firearms; Possessing unregistered firearms; Possessing ammunition without holding a licence. (f) On 11 March 2002,Mr Hoffman pleaded guilty to the abovementioned charges and the Local Court made a finding of guilt without a conviction being recorded (s.10 Crimes (Sentencing Procedure) Act 1999. The Court also ordered that the firearms seized by the police be destroyed. (g) On 8 November 2001, Mr Hoffman made an application for a Category A, B firearms licence. 8 In his oral evidence Mr Hoffman stated the following: (a) Up until 1996 he had more firearms than those that were found by the police on his property in August 2001. At about this time he read in the local newspaper that there was a buyback scheme for guns and he said to himself: "…this is my chance to get rid of them and get some money to pay the rates". He recollects that he had to go to the Coonabarabaran showground to participate in the buyback scheme. He took all his firearms and when it was his turn they were inspected by a police officer who took a rifle for which he was paid. He went on to state that he said to the police officer: "Do I need a licence for them?" To which the police officer responded: "You're a farmer aren't you? – Take them home." 9 As a result of what was said to him by the police officer, Mr Hoffman stated that he was not aware that he needed to obtain a licence to possess his firearms and that each of his firearms were required to be registered. He went on to state: "I am a law abiding man" and "I am now aware that I need a licence and I am aware of the safe storage requirements from the information contained in pamphlets I received from the police station". 10 During cross-examination, Mr Hoffman stated that in so far as he remembers the 1996 newspaper article only made reference to a buyback scheme. He stated that his son Andrew had called him from Darwin to ensure that he took all the firearms to see whether any of them would be purchased by the police. Mr Hoffman also agreed that his son was aware of the new licensing scheme at that time. 11 During cross-examination Mr Hoffman also stated that about two years prior to the hearing his neighbour had been burgled. The neighbour reported the incident to the police, who came to the neighbours home and as they were conducting some investigations they found the neighbours firearm on the premises. The police asked the neighbour whether he had a licence for the firearm to which the neighbour responded: "No." The neighbour was subsequently summonsed on charges in relation thereto. Mr Hoffman stated: "We laughed about it because the crooks were driving around in his car and yet he was summonsed for not having a licence for his firearm". 12 During cross-examination, Mr Hoffman also stated that he recollects the Prime Minister Mr Howard talking on the TV about the new gun laws because of the Tasmanian/Port Arthur shooting. He also understood that the buyback scheme was part of a new scheme following the Tasmanian shooting incident. RELEVANT LEGISLATION 13 The Firearms Act 1996 sets up a scheme for licensing people to possess and use firearms. The principles and objectives of the Firearms Act 1996 are set out in s.3 of the Act. That section provides as follows: "3. Principles and objectives of Act (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." 14 S.11(1) of the Firearms Act 1996 gives the Commissioner a discretion to issue a licence in respect of an application, or refuse any such application. S.11(3) of the Act prescribes certain circumstances of which the Commissioner must be satisfied in order to issue a licence. S.11(7) provides that the Commissioner: "may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest". APPELLANT'S SUBMISSIONS 15 Mr Butcherine, on behalf of Mr Hoffman, submitted that the Tribunal should accept Mr Hoffman's evidence that he was unaware of the need to obtain a licence to possess firearms or the requirement to have his firearms registered. It was further submitted that the Tribunal should be satisfied on the evidence that Mr Hoffman had been led to believe that he did not require the requisite licences or registration. If this is accepted, Mr Butcherine submitted, the Tribunal should take a less serious view of the contravention for which Mr Hoffman was found guilty. It was also submitted that the Tribunal in exercising its discretion under s.11(7) of the Firearms Act 1996 should approach an application for a review of a decision to refuse an application for a licence differently to that of an application for review of a decision to revoke a licence (see s.24(2)(d) of the Firearms Act 1996 and cl. 17 of the Firearms (General) Regulations 1997). The reason propounded for such a distinction was that those issued with a licence under the Firearms Act 1996 were under a greater obligation to ensure that they complied with the provisions of that Act and its regulations. 16 In this case Mr Butcherine submitted that the evidence established that Mr Hoffman and his sons had fully cooperated with the police, that Mr Hoffman had made his application so that he could possess firearms lawfully, there was no evidence of any previous inappropriate conduct in respect of the firearms that were located on the property and there was evidence that the firearms were needed. RESPONDENT'S SUBMISSIONS 17 Mr McGoldrick, on behalf of the Commissioner, submitted that the evidence established that Mr Hoffman at best turned a "blind eye" to the requirement of obtaining a licence to possess his firearms and to have those firearms registered. He went on to submit that the incident with the neighbour, two years previously, were sufficient to put Mr Hoffman on notice that he required a licence. He also submitted that Mr Hoffman's evidence that he was told in 1996, that he was not required to become a licence holder was disingenuous. 18 In his written submissions Mr McGoldrick submitted that the Tribunal's discretion under s.11(7) of the Firearms Act must be exercised in the same manner regardless of whether the matter before it is a review of a decision to revoke a firearms licence or a decision to refuse a firearms licence. REASONS AND DECISION 19 The concept of "public interest" has been considered by this Tribunal in several decisions (e.g. Whiteman v Commissioner, New South Wales Police Service [2002] NSW ADT 179: Ward v Commissioner of Police, New South Wales Police Service [2000] NSW ADT 28 and Police v Toleafoa [1999] NSW ADT AP 9). In Toleafoa the Appeal Panel stated at [25] that the public interest is: "…an inherently broad concept giving the Appellant the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual as the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal." 20 The phrase 'in the public interest' was considered by the High Court in O'Sullivan v Farrar (1989) 168 CLR 210. In a joint judgment Mason CJ, Brennan J, Dawson J and Gawdron J stated at 216: "… the expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and scope and purpose of the statutory enactments may enable… " 21 The Toleafoa decision related to a revocation of a security industry licence. In Ward's case, the Deputy President, concluded that the comments made by the Appeal Panel in Toleafoa were equally applicable in the context of the Firearms Act 1996. She went on to state that: " The 'public interest' in relation to the holding of a firearms licence relates to the objects and principles set out in s.3 of the Firearms Act . " 22 The case of Ward involved a decision to revoke a firearms licence under s. 24(2) of the Firearms Act 1996. The grounds relied upon included that it was not in the 'public interest' for the applicant to be the holder of a licence (see s.24(2)(d) Firearms Act 1996 and cl. 17 Firearms (General) Regulations 1997). 23 Sub-section 11(7) of the Firearms Act 1996 is in similar terms to cl. 17 of the Firearms (General) Regulations. Accordingly, as a matter of construction there is no justification for distinguishing between these provisions and the manner in which the discretion is to be exercised. Further more that discretion is to be exercised having regard to the particular circumstances of the case before the administrator and the objects and principles set out in s. 3 of the Firearms Act 1996. 24 As mentioned above, the objects and principles of the Firearms Act 1996 have been clearly set out by Parliament as primarily: (a) ensuring public safety by making the possession and use of a firearm a privilege; and (b) to improve public safety by imposing strict controls on the possession and use of firearms and promoting the safe and responsible storage and use of them (see s.3(1)(a) and (b) Firearms Act 1996). 25 In this case, Mr Hoffman was unlicensed to possess a firearm for 4 to 5 years. During this time he also unlawfully possessed a large number of firearms, which had not been registered as required under the Firearms Act 1996. 26 During this period Mr Hoffman also allowed his sons, who were not the holders of a firearms licence, to possess and use the unregistered firearms at the property. Furthermore, at all material times the firearms and ammunition were not kept in accordance with the safekeeping of firearms provisions contained in Part 4 of the Firearms Act 1996. 27 Ignorance of the requirements of the Firearms Act 1996 is not an excuse. 28 While Mr Hoffman has no prior conviction, the circumstances in which Mr Hoffman participated in the buyback scheme and his knowledge of the circumstances in which that scheme had arisen, the Tribunal finds it difficult to accept his explanation that he did not know he was required to register his firearms and obtain a licence. He certainly was aware that changes were to be introduced to firearms laws as a result of the Tasmanian shootings. However, he made no enquiries other than the enquiry he made of the police officer when he presented his firearms for the buy back scheme. While the Tribunal accepts that Mr Hoffman may have asked this police officer a question in relation to being licensed, the Tribunal does not accept that the conversation was in exactly the terms expressed by Mr Hoffman. The conversation occurred some time ago and Mr Hoffman made no contemporaneous record of what was said. 29 Notwithstanding what was said the obligation rested on Mr Hoffman to make sure he complied with the law. It was easy for him to do so. 30 Even if Mr Hoffman was mistaken initially, the incident with his neighbour can have left him in no doubt about what was required. He made no enquiries about his position and again it was easy for him to do so. In my opinion, he did not do so because he deliberately chose not to. As a consequence the firearms that were stored at the property posed a constant threat to public safety. They were not stored safely and could easily have been stolen and if stolen would not be traceable because they were unregistered. 31 In the opinion of the Tribunal, Mr Hoffman's conduct, which amounted to a serious breach, over a long period of time, of the Firearms Act 1996, is inconsistent with the responsibilities that are attached to a licence issued under the Act. He has put public safety at risk and has failed to appreciate that the possession of a firearm is a privilege. 32 For the reasons stated above the Tribunal finds that the Commissioner's decision to refuse Mr Hoffman's application for a category AB firearms licence is the correct and preferred decision. 33 The Tribunal orders that the decision of the Commissioner to refuse Mr Hoffman's application for a category AB firearms licence is affirmed.