Hocking -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 214

CITATION: Hocking -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 214 DIVISION: General Division APPLICANT PARTIES: David John Hocking RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 023154 HEARING DATES: 08/10/2002 SUBMISSIONS CLOSED: 10/08/2002 DATE OF DECISION: 10/29/2002

BEFORE: Higgins S - Judicial Member APPLICATION: Firearms Act - firearms licence - revocation of licence or permit - Firearms licence - revocation of licence or permit MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Firearms (General) Regulation 1997 Firearms Act 1996 CASES CITED: Phegan v Commissioner of Police, NSW Police Service [2002] NSWADT 127 Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 APPLICANT REPRESENTATION: P Latham, solicitor RESPONDENT J Tunks, solicitor ORDERS: 1. The Commissioner's decision to revoke Mr Hocking's category AB firearms licence is affirmed.

Background 1 On 18 July 2002, Mr Hocking lodged an application with the Administrative Decisions Tribunal ("the Tribunal") for review of a decision, made by a delegate of the Commissioner of Police ("the Commissioner") to revoke his category AB firearms licence. 2 Mr Hocking's application was made pursuant to s.75(1)(c) of the Firearms Act, 1996 ("the Firearms Act") and s.38 of the Administrative Decisions Tribunal Act, 1997. 3 The basis on which the Commissioner revoked Mr Hocking's firearms licence was the fact that on 14 March 2002, at the Warren Local Court, Mr Hocking had been found guilty of an offence of failing to keep his firearm safely pursuant to s.39(1)(a) of the Firearms Act. While Mr Hocking was found guilty of the offence charged, no conviction was recorded pursuant to s.10 of the Crimes (Sentencing Procedure) Act, 1999. However, Mr Hocking was placed on a good behaviour bond for a period of twelve months. 4 The grounds on which the Commissioner relied in making his decision were as follows: (a) that it was not in the public interest for Mr Hocking to continue to hold his firearms licence (s. 24(2)(d) Firearms Act and cl 17 Firearms Regulations); (b) that Mr Hocking had contravened a provision of the Firearms Act (ss. 24(2)(b)(ii) and 39); and (c) that Mr Hocking was subject to a good behaviour bond (ss11(5)(d) and 24(2)(a)). Hearing 5 The matter was heard in Warren and at the commencement of the hearing Mr Tunks, for the Commissioner, indicated that the Commissioner no longer sought to rely on the grounds that it was not in the public interest for Mr Hocking to continue to hold his firearms licence. 6 At the hearing the parties relied on material, which had been previously filed with the Tribunal. Mr Hocking also gave oral evidence and he was extensively cross examined by Mr Tunks. 7 The material filed by Mr Hocking included ten character references. 8 At the hearing oral evidence was also given by Sergeant Michael Allen Williams, who had been summonsed by Mr Hocking. Evidence 9 Mr Hocking gave the following evidence: * He is 34 years of age and has shooting for 17 years. He has held a firearms licence since 1994. * For the last four years he has also been the holder of a kangaroo shooter's licence, which is issued by the National Parks and Wildlife Service. This licence entitles him to participate in shooting kangaroos on specified properties for the purpose of culling the number of kangaroos on those properties. * In addition to being authorised to shoot a specified number of kangaroos he is also a qualified meat handler entitling him to take the kangaroos that he has killed to the local chillers for processing as pet food or food for human consumption. As a result of this shooter's licence Mr Hocking has been able to supplement his annual income by about $8,000. * Mr Hocking is currently employed as a water attendant for the Warren Shire Council. * He is the owner of four firearms - a Remington 223, a Savage 222, a Brownie pump action 22 and a Sterling 22. * He has had his Savage 222 since the time he was first issued with a licence. This firearm he stated needs to be destroyed, because he can no longer get any parts for it, and its is currently with a gun dealer. * The Remington 223 is the firearm he uses for shooting kangaroos and feral pigs. * The Sterling 22 he used for shooting pigs that had been caught in traps. * He was issued with his Category AB firearms licence on 24 August 1998. That licence was due to expire on 23 August 2003. His licence covers each of the abovementioned firearms. * On 1 August 2001, after coming home from work, Mr Hocking went shotting for feral pigs and kangaroos on one of the properties, which are authorised by National Parks and Wildlife to cull the number that come onto their property. On this occasion he took his son and another person. He drove his Nissan Navara twin cab ute and took his Remington 223 and Sterling 22 rifles. Both firearms were taken from the locked steel cabinet, which Mr Hocking has in his house. He placed his Remington 223 into a sponge rubber casing and then placed it on the dashboard of his ute. He places it on his dashboard so that it is readily accessible as kangaroos are shot from the vehicle. The Sterling 22, he wrapped in a towel and placed behind the backseat of the ute. His normal practice was to have the Sterling 22 lying on the back seat but on this occasion he had an extra person with him and for abundant safety he placed it behind the back seat. The firearm was not visible to persons standing outside the ute. At the same time he placed the ammunition for the Sterling 22 in the glove box of his ute and placed the other ammunition beside him. * That evening Mr Hocking finished shooting at about 12.30am. His recollection was that he had shot over 30 kangaroos that particular evening. After having shot the kangaroos he took them to the chillers and then returned to his home. His home is in the township of Warren and he parked his truck behind the family car. * He got home at about 1.00am, took his Remington 223 inside and locked it in the cabinet. He then returned to his vehicle, woke up his son, and took him inside. * As was his usual practice, after having woken his son, Mr Hocking locked his ute. * During that evening, Mr Hocking had not used the Sterling 22 rifle. * The next morning, on his way to work, Mr Hocking noticed that the driver's side door of his ute was opened. He also noticed that the back driver's side window had been forced open. Mr Hocking also noticed that the ammunition, bullets and magazine for his Sterling 22 were lying on the floor of the ute. It was then that he realised that he had left his Sterling 22 in the back of the vehicle when he returned home that evening. * The following day, at about 3.10pm, after he had finished work, Mr Hocking attended the local police station and reported the incident to the police. The police advised him to advertise for the return of the firearm. Mr Hocking did this but the firearm has never been recovered. * Mr Hocking acknowledged that he should have taken the Sterling 22 inside and locked it away. He stated that he realises that safety is paramount and that firearms are to be kept safely at all times to ensure that they do not come into the hands of any criminal. He stated that this had never happened to him previously and the only reason he did not take it inside on this occasion was the fact that he forgot that it was there behind the seat. He forgot because he had not used the firearm during that evening and it was not stored on the back seat, which was his usual practice. He further stated that he was not aware that at the time there had been a spate of thefts of firearms from vehicles, which were owned and used for spotlight shooting. * Mr Hocking pleaded guilty to the charge that had been laid against him.