CL v Commissioner of Police, NSW Police [2007] NSWADT 221

CITATION: CL v Commissioner of Police, NSW Police [2007] NSWADT 221

DIVISION: General Division

APPLICANT PARTIES: CL RESPONDENT Commissioner of Police, NSW Police

FILE NUMBER: 073151

HEARING DATES: 6 July 2007

SUBMISSIONS CLOSED: 6 July 2007

DATE OF DECISION: 26 September 2007

BEFORE: Montgomery S - Judicial Member

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

MATTER FOR DECISION: Principal matter

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED : Firearms (General) Regulation 2006 Firearms Act 1996

Cleofe v The Commissioner of Police [2001] NSWADT 2 Cook v The Commissioner of Police [2003] NSWADT 30 CASES CITED: Morris v The Commissioner of Police [2002] NSWADT 223 Phegan -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 127 Rosenboom v Commissioner of Police, NSW Police Service [2006] NSW ADT 10

APPLICANT W Preece, Solicitor REPRESENTATION: RESPONDENT R Mansley, Solicitor

ORDERS: The decision under review is affirmed

REASONS FOR DECISION 1 In these reasons the names of all private individuals have been anonymised so as to preserve the privacy of their personal affairs. In these reasons the Applicant is referred to as CL. 2 CL was issued with a Category AB firearms licence under the Firearms Act 1996 ("the Act") in August 2005. The licence was revoked on 1 March 2007. The revocation was affirmed on internal review and CL has applied to the Tribunal for external review of the determination to revoke the licence. 3 The revocation followed an incident on 23 January 2007 when Police were called to CL's premises regarding a domestic incident involving CL's son attempting self-harm. Police found CL's registered firearm leaning against a wall and that there were no safekeeping provisions at the location. CL advised that his firearm had remained unsecured in that manner since 9 January 2007. 4 On 15 February 2007 CL appeared before a Local Court on a charge of 'Not keep firearm safely - not prohibited firearm/pistol'. The offence was found proven but CL was dismissed without conviction. Applicable legislation 5 Section 24(2)(b)(ii) of the Act provides that the Commissioner may revoke a firearms licence if the licensee contravenes any provision of the Act or the Firearms Regulation 2006 ("the Regulation"), whether or not the licensee has been convicted of an offence for the contravention. 6 Section 19(2)(a) of the Act imposes a requirement to comply with the relevant safe keeping and storage requirements as a condition of CL's licence. 7 Section 24(2)(b)(iii) of the Act provides that the Commissioner may revoke a firearms licence if the licensee contravenes any condition of the licence. 8 Section 24(2)(d) of the Act provides that the Commissioner may revoke a firearms licence for any reason prescribed by the Regulations. 9 Section 39 of the Act provides that a person who possesses a firearm must take all reasonable precautions to ensure its safe keeping, and that it is not stolen or lost, and that it does not come into the possession of a person who is not authorised to possess the firearm. 10 Clause 19 of the Regulation provides that 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. CL's case 11 It is not disputed that CL contravened section 39 of the Act. His case is essentially that he considers himself a very safety conscious person and has a profound appreciation of the principles of firearms safety. He says that his conduct can be explained in light of the surrounding circumstances. 12 His evidence is that his 16-year-old son has suffered bad, sometimes violent, mood swings since he was sexually assaulted in late 2006. CL and his wife have been taking their son to a Psychologist since that time but the mood swings have continued. 13 CL purchased the firearm on 9 January 2007 and he was taking it to his rural property. He had not purchased any ammunition for use with the firearm. He intended to secure the firearm in a gun safe at the property. Whilst en route to the property he received a phone call from his wife who was crying and very upset. She explained that their son was threatening self-harm. He immediately returned home to assist and to try to calm the situation. During the next week CL and his wife took their son for more counselling however on 23 January they called police because their son threaten self harm again. 14 When the police attended they asked of any firearms. CL pointed to the unsecured firearm and explained to them the reason he not secured it in the gun safe on his property. 15 CL attended a Local Court on the 15 February 2007. The offence was found proved but the Magistrate chose to proceed without recording a conviction pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999. 16 CL stated that he knows he did the wrong thing in not keeping the firearm safely. He said it has been a deeply regrettable and embarrassing mistake, however under normal circumstances this would never have occurred and will never happen again. 17 He says that there was never any threat to anyone because someone had remained with his son at all times and his son did not even know the firearm was in the house. 18 Mr Preece submitted that the circumstances of this matter are extra-ordinary. The decisions that have dealt with common breaches of the legislation can be distinguished for that reason. He concedes that the breach continued for a lengthy period but argues that CL's ordinarily good judgement was impaired by the circumstances. He says that it is unfair to characterise CL's actions as having chosen to ignore his obligations as a licensee. He says that CL was dominated by the understandable need to care for his son in an enormously difficult period. 19 Mr Preece referred to views expressed in Phegan v Commissioner of Police, New South Wales Police Service [2002] NSWADT 127. In that matter the Tribunal concluded 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. Relevant considerations include: the reason for failing to store the firearm safely; the length of time the firearm was not stored safely; the potential or real danger posed by failure to store the firearm safely; the person's previous conduct in relation to storage of firearms and any the person's understanding of the importance of safe storage and the likelihood that firearms will not be stored safely in the future; and the reason the person has a firearms licence, keeping in mind that firearms possession and use is a privilege that is conditional on the overriding need to ensure public safety. 20 Mr Preece submits that the circumstances of this matter are such as to take the matter outside the ordinary case. The Commissioner's case 21 The Commissioner contends that safety is paramount. The principles and objects of the Act confirm that possession and use of firearms is a privilege that is conditional upon public safety. 22 Mr Mansley referred to a number of Tribunal decisions that have held that the highest priority has to be put on the safe use of firearms. Contravention in respect of failing to meet the safe storage requirements as set out under Part 4 of the Act are fundamental in their nature in that they are contraventions which go to the crux of the principles and objectives of the Act: Cleofe v The Commissioner of Police [2001] NSWADT 2. 23 He submits that it is important that anybody who has a firearms licence has adequate knowledge and understanding of the safety requirements. He referred to the matter of Rosenboom v Commissioner of Police, NSW Police Service [2006] NSW ADT 10 as an example of how the misuse of firearms can result in tragic consequences. That case involved the suicide of a family member using an unsecured firearm. 24 Mr Mansley submits that if a licence holder does not have sufficient appreciation of the importance of safe storage, the Tribunal would not be confident that their firearms will be stored safely in future. He argues that the circumstances of this matter support the view that CL does not have sufficient appreciation. He says that CL breached the licence conditions at a time when the need for safety was especially critical and his actions posed a very real danger to the public. 25 The Commissioner says that the decision to revoke CL's licence was both correct and preferable. Findings 26 I agree with the Commissioner's view that the most fundamental principle of the Act is that the possession and use of firearms is conditional upon the overriding need for public safety. The legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences. That this is the intention of the legislature is apparent from the comments by The Hon J W Shaw, Attorney General and Minister for Industrial Relations, in the Second Reading speech on 25 June 1996 (at page 3562): "The storage requirements are strict as non-compliance can easily compromise safety. For example, if firearms fall into the hands of children or others who are not licensed or trained in their safe use, accidental shootings can occur. And it is crucial to make every attempt to guard against youth suicide and to protect family members from firearms accidents." 27 Additionally, the Attorney General stated: "Legislation should have the effect of making failure to store firearms in the manner required an offence, as well as a matter that will lead to the cancellation of the licence and the confiscation of all firearms." 28 The gravity of the circumstances that have surrounded this matter is unquestionable. The evidence suggests that CL was familiar with the legislative requirements. However it also suggests that the surrounding circumstances impaired his judgement. In my view it is totally understandable that this could happen in the circumstances of 9 January 2007. If that were the extent of the breach it would be reasonable to exercise the discretion in his favour. However, the breach continued for almost two weeks after that initial incident. 29 In my view, the fact that the breach continued for that length of time takes it out of the extra-ordinary circumstances to which Mr Preece referred. I agree with the Commissioner that it is reasonable to expect that CL should have given some thought to the safety issues at some time during the following two weeks. I accept that it would have been unreasonable to expect that he would take the firearm to his rural property, however he could have made other arrangements for its safe storage. 30 It has been stated on numerous occasions that the responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the laws that govern them, they also must act in accordance with them. 31 The public interest requires that all licensees be aware of, and comply with, the legislative requirements: Cook v The Commissioner of Police [2003] NSWADT 30. The public needs to be confident that those who are afforded the privilege of a firearms licence store their firearms in accordance with the legislative requirements: Morris v The Commissioner of Police [2002] NSWADT 223. CL's failure to do so suggest to me that he has insufficient appreciation of his responsibilities as a licensee. This view is reinforced by CL's comments that he did not consider that there was any real risk to the public from the breach. 32 It is my view that more would be required before the public could be comfortable with CL again holding a firearms licence. Accordingly, it is my view that the decision under review should be affirmed. Should CL choose to reapply for a licence he could take steps to overcome this position by providing the Commissioner with relevant material to persuade him to grant the licence that he is seeking. Order The decision under review is affirmed.