Felsing-Protasowski v Commissioner of Police, NSW Police [2006] NSWADT 42

CITATION: Felsing-Protasowski v Commissioner of Police, NSW Police [2006] NSWADT 42

DIVISION: General Division

APPLICANT PARTIES: Richard Eugene Felsing-Protasowski RESPONDENT Commissioner of Police, New South Wales Police

FILE NUMBER: 043300 & 053240

HEARING DATES: 1/12/2005

SUBMISSIONS CLOSED: 12/01/2005

DATE OF DECISION: 02/09/2006

BEFORE: Molony P - 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 (General) Regulation 1997 Firearms Act 1996

Commissioner of Police, New South Wales Police v Snape (GD) [2004] NSWADTAP 15 Field v Commissioner of Police, New South Wales Police [2004] NSWADTAP 52 CASES CITED: Garland –v- Commissioner of Police, NSW Police [2005] NSWADT 95 Osborne -v- Commissioner of Police, New South Wales Police Service [2000] NSWADTAP 10 Snape v Commissioner of Police [2003] NSWADT 262 Webeck -v- Commissioner of Police, New South Wales Police [2004] NSWADT 229

APPLICANT In person REPRESENTATION: RESPONDENT W Pisani, agent

ORDERS: The decisions of the Commissioner of Police to refuse Mr Felsing-Protasowski applications for a Category H licence and for a permit are affirmed.

REASONS FOR DECISION Introduction 1 Mr Felsing-Protasowski (Mr Felsing) is in the gem, jewellery and collectables business. He trades diamonds and other gemstones on consignment. His business includes the purchase and trading of Australian gemstones, opals and sapphires, from their source in isolated areas such as Lightning Ridge. He operates on both a retail and wholesale basis. In the course of his business he has carried gemstones, in transit, to a value of $500,000.00. Because the purchase of gemstones at source is a cash business, he sometimes carries substantial amounts of cash. Both the cash and Mr Felsing's stock in trade, which is hard to identify and easily negotiable, are attractive to thieves. 2 Mr Felsing has variously held a pistol licence or permit since 1969 and has carried a pistol for the protection of his stock and cash as part of his business. He has made it clear in the course of his trade that he is armed and believes that this has protected him from robbery while out conducting business. 3 In the past Mr Felsing has had his applications for new pistol payments refused at first instance on two occasions, in 1999 and 1998. Both those refusals were however overturned by the Local Court. 4 On 8 May 2001 following a personal medical emergency, Mr Felsing left his pistol and two magazines in his locked vehicle, which was secured in his home garage. The vehicle and its contents were stolen. The pistol and ammunition were never recovered. The theft was reported to Police who subsequently charged Mr Felsing with failing to ensure the safekeeping of a firearm. The charge was contested and ultimately found proven, but dismissed under s.10 of the Crimes Sentencing Procedure Act. In the course of his reasons for decision given on 15 October 2001, the Magistrate said: "In the future, I believe, Mr Felsing will probably be - not probably, I'm satisfied would be and will be a person who will take all reasonable precautions in relation to the safe-keeping of firearms as he would have otherwise done had it not been for this medical emergency at the time." 5 On 14 December 2001 Mr Felsing's pistol permit was revoked on the basis that the breach of the safekeeping requirements had been found proven. Mr Felsing sought an internal review of that decision. On 29 January 2002 the decision to revoke the permit was overturned, and Mr Felsing continued to hold his pistol permit until its expiry on 20 April 2004. 6 Mr Felsing applied for a new permit, which application was refused on 16 June 2004. He subsequently sought an internal review on 16 July 2004. The decision to refuse his permit application was confirmed on internal review on 10 August 2004. Mr Felsing then lodged an application seeking review of that decision on 10 September 2004. 7 Mr Felsing subsequently applied to the Commissioner for the issue of a Category H (Pistol) licence under the Firearms Act 1996 on 4 January 2005. That application was refused on 25 February 2005. Mr Felsing again sought an internal review. On 14 June 2005 the refusal to grant him a licence was affirmed on internal review. He lodged an application seeking review of that decision on 14 July 2005. 8 The two applications for review were heard together on 1 December 2005. The Legislation and Its Interpretation 9 Under the Firearms Act 1996, the licensing scheme requires a person to demonstrate a "genuine reason" for owning, using or possessing a firearm (s 12). Genuine reasons include sport/target shooting, primary production, business or employment and firearms collection. Protection of property is not a genuine reason unless, relevantly, "it is necessary in the conduct of the applicant's business or employment". Neither is protection of persons (s 12). A category H licence, which relates to a pistol, is not to be issued unless, in addition to a genuine reason for the licence, there is a "special need" for the person to possess or use a pistol (s 16). 10 In Osborne -v- Commissioner of Police, New South Wales Police Service [2000] NSWADTAP 10 an Appeal Panel considered the approach to be taken by the Tribunal in determining whether the use and possession of a pistol was necessary in the conduct of an applicant's business. There the Applicant for a pistol licence was a trader in firearms, who regularly travelled with large quantities of valuable weapons, to visit customers and attend gun fairs in regional areas. He had no fixed place of business. He carried his stock with him. He sought a pistol licence both for his own protection and that of his stock. He claimed a rifle would not satisfy his needs as he could not use it properly in a car. He produced a security assessment which showed the degree of risk of assault or armed robbery to which his business was exposed as high. 11 The Panel said: "43 In the present context the question to be asked is whether the applicant has demonstrated that it is necessary in the conduct of the applicant's business to possess or use a hand-held pistol. 44 The critical issue of interpretation is not, in our view, related to whether the use is 'reasonably' necessary or 'absolutely' necessary, but whether the reference to 'the applicant's business' is to be construed as a reference to the way in which the specific applicant conducts his or her business or is to be construed as a reference to businesses of the kind conducted by the applicant. If the former approach is taken then the applicant may have an arguable case that a hand-held pistol should be permitted to issue as there are findings in his favour that he is exposed to a reasonable risk of armed robbery while travelling alone with his stock of weapons. If on the other hand the question is whether businesses of the type conducted by the applicant necessitate the possession of a hand-held pistol, the position is more problematic. 45 The narrower view should, we consider, be preferred. The purpose of the legislation is to reduce the use and possession of firearms in the community. If a broader view were to be taken not only would that lead to a greater number of firearms circulating in the community, but it would tend to mean that types of businesses where a real choice existed as to how they were conducted would be more able to make a claim for the possession of a hand pistol the less safely it was conducted. Such an interpretation would defeat the objects of the legislation. 46 Adopting that approach, our conclusion is that the question of what is 'necessary' for the 'conduct' of a 'business' should be interpreted objectively by having regard to the core features of businesses of the type that are the subject of the application. The business under examination is that of dealing in firearms. The trade involves regulated goods which can be lethal to innocent people if they fall into the wrong hands. The trade often involves the possession of great quantities of these goods, with commensurate value. None of these features in themselves suggest that it is necessary for the conduct of the trade that dealers carry live pistols. The possession of a pistol is not directly required of the business or employment. The position might be different if the business was one of, say, training in the use of pistols or provision of bodyguard services to heads of state. 47 The question this case poses is whether, even though the typical form of the relevant business does not necessitate the carrying of a pistol, the way in which the applicant has chosen to conduct the business means that it is 'necessary' for the 'conduct' of the 'applicant's business' that he be allowed to have a pistol. We do not consider that the provision should be read in this broader way. In the present case Mr Osborne argues that the way he does business, and has done for many years, provides the justification for carrying the pistol. 48 The test should be read so as to focus on the type of business activity undertaken by the applicant, rather than the specific way the applicant undertakes that business. To accede to the proposition would allow for categories of business that ordinarily have no case for possession and use of a pistol to be conducted in a high-risk way that might found a claim by the operator to have access to a pistol. This would run contrary to the objects of the legislative scheme designed to restrict the circulation of weapons in the community. 49 The way Mr Osborne has chosen to undertake his business involves him in travelling alone and carrying these dangerous goods to isolated locations. It is not essential to the process of dealing in firearms to do business in this way. 50 The Commissioner's task is to look at the type of business conducted by the applicant, and ask whether for that type of business the nominated firearm should be regarded as necessary. The instances that would justify possession of a pistol for the protection of the business's property, applying that test, would be rare. That outcome is consistent with the social purpose of the legislation. 12 In Commissioner of Police, New South Wales Police v Snape (GD) [2004] NSWADTAP 15 the Appeal Panel considered an appeal against a decision by the Tribunal to grant Mr Snape a pistol licence for use in the course of his fishing business. Mr Snape was a sole fisherman who fished from a dinghy and caught sharks as part of his business. In order to do so safely, the sharks had to be killed once caught, before being brought on board his boat. To do so he wished to use a pistol. To use a rifle was unsafe because of the difficulty in holding the shark on a line with one hand, and cocking, aim and shooting a rifle with the other. The Tribunal in assessing the core features of Ms Snape's business the Tribunal, at first instance, found in Snape v Commissioner of Police [2003] NSWADT 262 at [53]: "I find that the relevant core features of the type of business that is the subject of this application is: the landing of sharks, the need to do so safely, and the consequent practice of shooting the shark before landing it. Implicit in this is the further core requirements that the shooting be done reliably and safely." 13 The Appeal Panel at [48] said of this conclusion: "… We would agree … that some of the factors which the Tribunal treated as 'core features' – specifically, the 'need' to land sharks 'safely' and to shoot sharks 'safely and reliably' – are probably better seen as reasons why the conduct of the Respondent's business, having regard to the other matters identified as 'core features', required him to possess and use a pistol. But on the question of prime importance – that is, whether it was correct in assessing 'core features' to take account of the particular types of fish targeted, the methods appropriate to the catching of such fish and the scale of the business – we discern no error on the part of the Tribunal. The Panel also accepted that, at [39]: "…in direct contrast to the firearms dealer in Osborne, the Respondent in this case would be using a pistol for an activity – killing sharks – that formed an integral part of his business of commercial fishing." 14 In addition to the issue of licences, the Commissioner has power to issue permits in certain circumstances defined in s 28. Only one is potentially applicable to Mr Felsing's circumstances, that in s 28(g): "the possession or use of firearms in such circumstances as the Commissioner considers appropriate". The Commissioner may refuse to issue a permit if he considers that issuing the permit would be contrary to the public interest (s 29(4)). In addition the Firearms (General) Regulation 1997 provides that the Commissioner may refuse to issue a permit if the applicant intends to possess or use the firearm for the protection of property (Cl 9(2)( b)). 15 While the constraints found in the Act in connection with licences may inform the Commissioner's discretion they do not govern it. In Field v Commissioner of Police, New South Wales Police [2004] NSWADTAP 52 the Appeal Panel regarded the following considerations as relevant to the exercise of the power to issue a permit: a) whether the 'need' for a pistol rather than a long-arm is established. A pistol must be necessary, rather than merely desirable or convenient. The need must be real and not hypothetical based on an assumed future event; b) the restrictive approach found in the licensing provisions to the grant of pistols as against shot-guns and rifles; c) the extent to which the applicant has attempted to use alternative methods, even if less convenient; d) the risk to personal safety associated with alternative methods; 16 These considerations must be balanced against the considerations of public safety and the public interest that are paramount in the Act. 17 Mr Pisani, who represented the Commissioner, did not seek to question Mr Felsing's fitness to hold a permit or licence. He did not contest the evidence provided by Mr Felsing in support of his applications, and did not challenge Mr Felsing's evidence as to the manner in which he operates his business, or past attempts to break into his premises. 18 Mr Pisani's case was put on the basis that as a matter of law Mr Felsing did not satisfy the criteria to be granted a Category H licence, because applying the test established in Osbourne-v- Commissioner of Police, New South Wales Police Mr Felsing does not have a genuine reason for owning, possessing or using a pistol. The second limb of his argument was that because Mr Felsing's circumstances are ones to which the licence provisions of the Firearms Act 1996 clearly apply, the permit provisions of the Firearm Act 1996 cannot apply: Webeck -v- Commissioner of Police, New South Wales Police [2004] NSWADT 229. Mr Felsing's Business 19 Since Mr Felsing surrendered his pistols following the expiration of his permit in 2004 he has not engaged in the sale or purchase of gemstones, and no diamonds have been received or on sold. He does not consider it safe to do so. The evidence as to his business operation therefore stems from operations undertaken before the surrender of his licences. 20 Mr Felsing has commercial premises in Rozelle which are appropriately alarmed and secure and in which he has a strongroom, where his stock and cash is secured. He also has a safe at home, in which stock is sometimes stored. While in transit or during transactions stock and cash remains in his personal possession. In his statement to the Tribunal Mr Felsing explained: 15. "… Although the section of the building that I occupy is secured with steel gates at every entrance, when in transit carrying cash and/or stock, my property is virtually unprotected. If it became known that I was unarmed when carrying cash and/or easily negotiable stock from place to place, then I believe I would be a certain target for thieves. … 16. The purchase of rough stones and gems on the opal fields of Lightning Ridge is generally a primitive affair. Except for the well known large opal buying companies, transactions are all conducted in cash at the individual mines, the miners' homes, in a vehicle on the street, the settling rooms at the Miners Association or at a motel room. In the absence of a firearm, no security for the stones or the cash is available before, during or after the transaction, until the goods have been successfully transported by motor vehicle to my premises in Sydney. … Without the protection a pistol can provide, I believe my property is at substantial risk during any buying trips to the opal fields. 17. The collection, transportation and sale of negotiable diamonds without the deterrent and protection a firearm would bring makes the enterprise so potentially hazardous as to render it, in my view and the view of my supplier, untenable… 18. I believe that prior to June 2004 the deterrent I created by deliberately making it known to those with whom I had dealings that I carried a licensed pistol on my person when I had in my possession stock or cash, prevented me from becoming the victim of a robbery. The Reviewing officer states "More importantly, as is the case for every other community member, you are required to rely on Police charged with the duty of protecting you." I believe that the only way of effectively securing property in my possession, especially in remote locations, is by the possession of a licensed firearm." 21 When transporting stock or cash in his vehicle Mr Felsing stored his pistol in a scabbard attached to the panelling at the side of the drivers foot well. When out of the vehicle the pistol was carried in a holster. In his years of trading, Mr Felsing said he has not been required to use the pistol, although he believes that the fact that he was known to be armed with a pistol acted as an active deterrent. The Core Features of Mr Felsing's 22 Mr Felsing is in the business of purchasing and selling gem stones, including the sale of gemstones on consignment. He does so as a sole operator. When purchasing gemstones he does so directly from miners in remote locations and as a matter of industry practice pays them in cash. Mr Felsing says that essential feature of his business is the secure storage and transport of gemstones of significant value, and substantial sums of cash, to and from the point of purchase or collection to his place of business. 23 Mr Pisani for the Commissioner conceded that core features of Mr Felsing's business include operating in isolated environments and keeping his stock secure. He submitted that it is possible for Mr Felsing to go about his business without being armed with a pistol. Is a Pistol Necessary? 24 Mr Felsing produced to the Tribunal a series of letters in support of his contentions. First, was a letter from Mr James Ballas of Steven James Jewellers dated 21 December 2004. Relevantly it said: "For a considerable time we had been supplying Gemline exports, through its owner R. Felsing-Protasowski, with substantial consignments of diamonds. Values range from $200,000 to $500,000 per consignment. Consignments were only entrusted to Gemline on the basis that satisfactory security arrangements would be in place to ensure the safety of each consignment. Because I once belonged to the same target pistol club, I was aware that Mr. Felsing-Protasowski was competent in the use and handling of firearms. I was also aware that he held an open licence to possess and carry one in the course of his business. Because of this, on all occasions when our gems were in his possession, we were satisfied that he would protect our merchandise with all the deterrence a firearm could guarantee. We considered this degree of security acceptable as it is equivalent to what we generally expect from security companies when merchandise is placed in their custody. Towards the end of May this year Mr. Felsing-Protasowski informed us that he was no longer able to protect our consignments because of some difficulties he encountered in renewing his firearms licence. After considerable deliberation we decided that in the best interests of our business, it would be prudent to withdraw all offers of future consignments to Mr. Felsing-Protasowski until the safety of our merchandise could be acceptably secured while it remained in his possession. No transactions involving the sale of diamonds on consignment from us have been undertaken since 1st June 2004." 25 Secondly, there was a letter from Ms Maxine O'Brien, the Secretary manager of the Lightning Ridge Miners' Associated Ltd, dated 18 October 2005, in which she advised that: "One of our members Mr Richard Felsing-Protasowski has asked me to confirm the local buying and selling practices of black opal. The opal industry is made up of approximately 1,000 individual opal miners and a substantial number of wholesalers who either operate alone or in small partnerships. The majority of buying and selling transactions for black opal occur in Lightning Ridge. The larger wholesalers generally have their own office in Lightning Ridge and purchase opal on a regular basis. Other wholesalers purchase opal on the field, from a motel room or at a miner's home or camp. Up until several years ago the Lightning Ridge Miners' Association Ltd rented offices to wholesalers to conduct their transactions but this is no longer the case. There are a large number of miners and wholesalers who have not built up a long-term business relationship, subsequently a substantial portion of opal transactions are conducted in cash. The necessary documentation, such as tax invoices etc, is required irrespective of the payment method. Some miners may also permit the wholesaler to borrow their opal stock on consignment and in this case the opal becomes the wholesalers responsibility. It is common practice for opal wholesalers who visit Lightning Ridge to carry substantial amounts of cash and/or opal on their person." 26 Mr Felsing also relied on a series of identical letters he had written to Brinks, Armaguard and Chubb seeking their advise as to the availability and cost of providing the following services: 1. "Availability of cash in Lightning Ridge of between $250,000 and $500,000. We note in this regard we are not customers of Westpac, the only Bank in town. 2. The cash will be exchanged for opals at the Miner's Association building, a room in a brick building is available for our use. One day minimum needed. 3. The opals will then be given into your custody to be transported to Sydney." Chubb advised by letter dated 7 September that they had not provided this sort of work before and said that the "logistics and cost would be prohibitive". Brinks advised on the same date that "Brinks Australia has no service in Lightning Ridge at this time". Armaguard were unable to assist with his request. 27 Mr Pisani acknowledged that it is desirable that Mr Felsing carry a pistol, but submitted that being so armed was not necessary to enable a core feature of the business. Mr Pisani submitted that for Mr Felsing to carry a pistol would only escalate the likelihood of dangerous consequences were there an attempt to rob him. In making that submission he relied on the decision of Judicial Member Montgomery in Garland –v- Commissioner of Police, NSW Police [2005] NSWADT 95 at [16]. 28 The evidence produced by Mr Felsing going to the need for him to be armed with a pistol concentrates on the business of purchasing and transporting gemstones from the Lightning Ridge area. It is important to note that this is only a facet of business. The other component of his business which he says requires that he be armed with a pistol, is the general transport of gem stones whether on consignment or otherwise. There is no evidence that alternative security arrangements are not readily available to assist him in that endeavour and I am not satisfied that possession of a pistol is directly required by that component of his business. 29 With respect to Lightning Ridge and other isolated areas in which Mr Felsing may seek to deal in gemstones, my view is the possession and use of a pistol is not essential to the core features of Mr Felsing's business. This can be contrasted with the position in Snape, where the use of a pistol was essential to kill a shark once caught. In reaching this conclusion I do not doubt Mr Felsing's evidence about the past conduct of his business, or the deterrent effect of it being known he is armed. Possession of a pistol, however, is not "directly required" by the business. Further, I also agree with the Commissioner that Mr Felsing being armed with a pistol can only escalate the likelihood of dangerous consequences if there was an attempt to rob him. 30 In the light of those conclusions, I am of the view that the correct and preferable decision is to affirm the Commissioner's decision to refuse Mr Felsing's reapplication for a Category H licence. The Permit Application 31 Mr Pisani submitted that, following the decision in Webeck -v- Commissioner of Police, New South Wales Police [2004] NSWADT 229, that I should only consider Mr Felsing's application for a licence application because the licence provisions, rather than the permit provisions, applied to his circumstances. This does not reflect my understanding of the decision in Webeck where Deputy President Hennessy said, at [7]: "Although the licensing and permit schemes cover different circumstances, there is a general discretion given to the Commissioner to issue a permit where he considers it appropriate. It is possible that the Commissioner could consider it appropriate to issue a permit even if an applicant is not eligible for a licence. That conclusion arises from the fact that the Commissioner has discretion to refuse a permit in certain circumstances, but there is no blanket discretion to refuse to issue permit when the person's need for a firearm is covered by the licensing provisions." 32 In considering Mr Felsing's permit application, it is important to note that the Act has adopted an approach to the possession and use of pistols that makes them harder to obtain than longarm rifles. The legislature has determined that imposing strict controls on the possession and use of firearms is the best way of improving safety. The circumstances in which a permit for a pistol will be issued should be viewed with considerable caution and in light of the paramount considerations of public safety and the public interest. 33 When Mr Felsing's desire for a pistol in relation to that business is weighed up against considerations of public safety and the public interest, the balance falls against Mr Felsing. In my view, as discussed above, being armed with a pistol can only escalate the likelihood of dangerous consequences if there was an attempt to rob Mr Felsing. The need he points to only relates to a portion of his business, and while a pistol undoubtedly best suits his requirements, I am not persuaded that a long arm could not equally fulfil his needs. It is possible for him to carry a long arm, and to store a long arm in a scabbard in his vehicle. While it might be more difficult to deploy in the confined space of a vehicle, I can see no reason why it would not serve the deterrent role which Mr Felsing says his past possession of a pistol has. In my view the correct and preferable decision in the circumstances is that Mr Felsing's application for a permit should be refused. 34 Accordingly, the Commissioner's decisions should be affirmed.