Huckel v Commissioner of Police, NSW Police Force [2008] NSWADT 347

CITATION: Huckel v Commissioner of Police, NSW Police Force [2008] NSWADT 347

DIVISION: General Division

APPLICANT Robert Leslie Huckel PARTIES: RESPONDENT Commissioner of Police, NSW Police Force

FILE NUMBER: 083325

HEARING DATES: 19 November 2008

SUBMISSIONS CLOSED: 19 November 2008

EXTEMPORE DECISION DATE: 19 November 2008 BEFORE: Montgomery S - Judicial Member

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

LEGISLATION CITED : Firearms Act 1996 Firearms Regulation 2006

Brosowski v Commissioner of Police [2003] NSWADT 182 Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 CASES CITED: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Sweet -v- Commissioner of police, New South Wales Police Service [2000] NSWADT 185 Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28

APPLICANT In person REPRESENTATION: RESPONDENT S Sheather, solicitor

ORDERS: The Commissioner's decision to revoke the applicant's firearms' licence is affirmed.

REASONS FOR DECISION Background 1 The applicant has held a Category AB firearms licence under the Firearms Act 1996 ("the Act") since 1998. Part of his income is derived from professional kangaroo harvesting and he requires his licence for that purpose. The applicant's licence was revoked in August 2008 following an attempt at self -harm. 2 The applicant sought an internal review of that revocation. The internal review affirmed the original determination to revoke his licence. The statement of reasons provided to the applicant in regard to the internal review determination set out the background to the revocation. It is not in dispute that in August 2008 the applicant made an attempt at self-harm by overdosing on medication. His brother found him with a gun in his possession but there is no suggestion that he had attempted to self-harm by using the firearm. 3 It is also common ground that this was the applicant's third attempt at self-harm. One previous attempt had involved the use of a firearm. The external review 4 The applicant applied to the Tribunal for review of the determination to revoke his licence and he sought a stay of that determination. The stay application first came before me on 4 November 2008. I adjourned that application to allow evidence from the applicant's psychiatrist, Dr John Bardon. The stay application resumed on 11 November 2008 and Dr Bardon gave evidence by phone and was cross-examined. The stay was not granted but the matter was adjourned for an expedited hearing held on 19 November 2008. Dr Bardon's evidence was adopted in the hearing of the substantive matter. 5 At the conclusion of the hearing I determined that the decision under review should be affirmed and I gave brief reasons for my decision. The applicant has requested written reasons for my decision and these reasons are provided in response to that request. Relevant legislation 6 Section 24(2)(a) of the Act prescribes that a firearms licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind. 7 Section 11(4)(b) of the Act prescribes that a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant's previous attempt to commit suicide or cause a self-inflicted injury. 8 Section 24(2)(d) of the Act provides that the Commissioner of Police may revoke a firearms licence for any reason provided by the regulations. 9 Section 64(1) of the Act provides that a person must not handle or use a firearm while the person is under the influence of alcohol or any other drug. 10 Clause 19 of the Firearms Regulation 2006 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. The applicant's case 11 The applicant relies on his own evidence and that of his treating psychiatrist, Dr Bardon, the applicant's brother Mr Alan Huckel and the applicant's wife, Ms Deborah Huckel. The applicant's case is essentially that set out in the explanation that he provided when requesting the review of the revocation. He stated: My reasons for seeking a review on their decision are as follows: ... . That prior to the incident on the 10th August 2008, (I now have realized), I had been suffering from undiagnosed depression for probably over 15 years. (Back when depression wasn't recognized in men or rarely spoken about.) During this undiagnosed period I have held my Firearms License since 1998 without incident, responsibly in accordance with the Laws. As mentioned in Section 11(4)(b). . That prior to the incident on 10th August 2008 I did seek help at a local GP Clinic to see if I was maybe suffering from depression and was prescribed medication from a GP there (which on consultation with Dr Bardon at The Dubbo Base Hospital was found to be the wrong medication and also the wrong dosage). Which along with my extreme emotional state at the time, (separation from wife) may have had a contributing effect to my behaviour on the 10th. . That mention of previous self harm attempts some previous 13 years earlier were only made know to my brother by myself a couple of weeks after my wife and I first separated the 9th July 2008 when I went to stay with him. And his wife suggested seeing a Doctor to see if I needed help. In saying this you can see apart from the incident on the 10th August I have acted responsibly and accordingly with the Firearm Laws. Which my wife's letter will collaborate. . If I had truly wanted to hurt myself, I would not have gone to my wife's residence (in which my behaviour concerned her) and she then called my brother Alan, Not the Police to help me. It was a cry for help which was heard. They both can be called upon as witnesses to events that took place that day and my behaviour. They can also state that they did not find me on the 10th August 2008 with the firearm in my hands. It was sitting actually beside me on the futon lounge in the garage and in no way used threateningly. My wife Deborah actually removed it from beside me. . That I have seen Dr Bardon again in September 2008 and he is happy with my progress and medication. . That part of my income is derived from professional Kangaroo Harvesting and I am continuing to lose income from not having my license of firearms … 12 The applicant asserts that apart from the incident on 10th August 2008 he has always safely stored and used his firearms responsibly, kept his licence and tests current, and never threatened anyone with a firearm. He conceded that he had made two previous attempts at self-harm. On one of those occasions he put a loaded gun to his head and pulled the trigger but it failed to discharge. The second attempt involved an overdose of medication. He says that both incidents were at times of high stress brought about by relationship issues. He agreed that he had not advised the Commissioner of those incidents when applying for his firearms licence because he had not wanted anyone to know about them. He had put the incidents behind him and did not acknowledge them until he consulted Dr Bardon. 13 The applicant stated that he is currently living with his brother Alan and Alan's family and that his relationship with his wife has stabilised. He is now on prescribed medication and has undergone counselling. He has noticed improvement in his moods, behaviour and his over all life. He no longer harbours thoughts of self-harm. He acknowledges and accepts that in order to manage his depression it may be necessary for him to be on medication for the rest of his life. 14 He submits that he should not be penalised or discriminated against for having a medical condition that affects many people. 15 He said that even if he doesn't retain his licence there is still a risk of self-harm. However, he said that when he is shooting he is more relaxed and stress free. He asserts that he would present no greater risk to either himself or any other member of the public if his licence is returned. Dr Bardon's evidence 16 The applicant relies on a report from Dr Bardon dated 25 August 2008. Dr Bardon concluded: "In my opinion Mr Huckel is capable of retaining his gun licence and using his guns safely and responsibly." 17 As noted above, Dr Bardon gave evidence before the Tribunal and was cross-examined. He said that examined the applicant twice after he was admitted to hospital and subsequently at the Community Health Centre after he was discharged. The applicant had been prescribed anti-depressants about two weeks prior to his admission. Dr Bardon had increased the dosage of his anti-depressants but he does not consider the previous dosage to have been a factor in the incident on 10th August 2008. The applicant will continue to receive ongoing treatment from his GP with respect to his depression. Dr Bardon has no ongoing treatment planned but is available if required. He does not considered that it would have a significant affect on the risk associated with applicant's use of firearms if he ceased taking his prescribed medication. 18 Dr Bardon diagnosed the applicant's condition as adjustment disorder and alcohol abuse in reaction to the stressful situation of his marriage breakdown. He said that at the time he was admitted, the applicant was extremely distressed and confused. The applicant had subsequently attempted to minimise the seriousness of the situation and made excuses for what had happened. He failed to grasp how serious it was and was adamant about the need to retain his firearms licence because of the link to his livelihood. 19 Dr Bardon's view is that there would be some risk to the wider public from the applicant's access to firearms but assesses the risk as being at the low end of the scale. However, Dr Bardon assesses the risk to the applicant himself as much higher. He said that the risk is linked to the applicant's impulsive reactions and that this could be reduced if his access to firearms was supervised e.g. if the applicant were only permitted to have access to firearms to go shooting in the company of others the risk would be on the low end of the scale. He said that he understood that the applicant's brother was prepared to undertake that supervision. Deborah Huckel's evidence 20 Deborah Huckel has known the applicant for nearly 3 years and they have been married to for nearly 2 years. They have been separated since July 2008. Ms Huckel provided evidence in support of the application. Her evidence is that the applicant values his firearms licence and the responsibilities that go with holding the licence. He has always had a responsible attitude towards firearms and always stored them safely. She said that he only ever removed the firearms from their safe as he was leaving to go Kangaroo shooting and then always replaced them as soon as he returned from shooting. At no time has she ever been or felt threatened by his firearms. 21 Ms Huckel described the incident on 10 August 2008 as a lapse in judgment due to the applicant's undiagnosed depression, the newness of their separation and wrongly prescribed medication from his GP. She conceded that she was not aware of the applicant's previous attempts at self-harm. She did not concede that the risk of self-harm would be increased if he had access to firearms. She does not think that he intended to use a firearm to self-harm on 10 August 2008. She maintained that he has always been responsible with his firearms and that it would be more detrimental to him to not have access to them than to return them. Alan Huckel's evidence 22 Alan Huckel gave evidence about the incident on 10 August 2008. He said that Deborah Huckel had called him and indicated that she thought the applicant was going to kill himself. He went to Ms Huckel's house and found that the applicant had locked himself in the shed. When he looked inside he saw the applicant with a firearm beside him and thought the applicant was dead. He pushed the door open and entered the shed, removed the firearm and found that the applicant was alive. He said that the applicant woke and asked where the firearm was then took hold of a hunting knife and was going to stab himself. It took a few minutes before the applicant could be settled. He then took him to the hospital. 23 He said that he did not check and was not aware of whether or not the firearm was loaded. He did not think the applicant was going to use the firearm. He thought it was probably a hoax to get his wife to listen to him. 24 Mr Huckel said that he does not hold a firearms licence and that there are no others who are licensed to possess firearms living in the household with the applicant and who could take charge of the applicant's firearms or monitor his access to them. He also said that another brother, Graham Huckel, who sometimes went hunting with the applicant, does not hold a firearms licence. He conceded that he was not aware of the applicant's previous attempts at self-harm. He did not concede that the risk of the applicant's self-harm would be increased if he had access to firearms. 25 The applicant says that his record shows that he has always behaved professionally in relation to the use of his firearms. He says that losing his firearms and losing his livelihood as a consequence of that loss will harm him mentally. He submits that the incident on 10 August 2008 arose because he was unwell and he had been provoked. He has now sought help in relation to his depression and such incidents will not reoccur. He asserts that he presents no risk to either himself or any other member of the public. The respondent's case 26 The respondent filed and served a copy of its file in relation to the applicant's licence. The respondent contends that the applicant should not be permitted to hold a firearms licence because of his attempts at self-harm. 27 Mr Sheather relies on arguments which are essentially the same as those set out in the statement of reasons provided to the applicant in regard to the internal review determination. Those reasons stated in part: I have noted the issues raised by you, your Doctor (Dr Bardon) and Deborah Huckel in support of your application. However, after fully and independently considering all relevant matters, as detailed below, I find that the correct and preferable decision was to revoke your personal firearms licence. I note that on 15 August 2008 notification was given to Police from Dr Esther Mussry pursuant to Section 79 of the Firearms Act 1996 (Act) stating you made an attempt at self-harm by overdosing on medication on 10 August 2008. Your doctor advised that you were found by your brother with a gun in your hand but you were too lethargic to harm yourself. Your Doctor further stated that, "this is Robert's third suicide attempt but only the second with the involvement of a gun". Although, no details of your previous attempts at self-harm were provided, I am satisfied that a serious attempt at self-harm was made on 10 August 2008 and you have previously made two suicide attempts. I note in your submission of internal review you state that you made this attempt at self -harm as you had separated from your wife and due to your undiagnosed depression thought negatively as you believed that you would not reconcile. In addition you state that you, "no longer harbour thoughts of self harm": In summing-up you also state that you, "should not be penalised or discriminated against for having a medical condition that affects so many". I advise in response to this statement, the decision made to revoke your firearms licence was in regard to your actions in attempting self harm and the highest precedence was afforded to ensuring 'public safety' being that of your own. Accordingly due to your attempts at self-harm (not because of your illness) a decision has been made to affirm the revocation of your firearms licence. Aside from one earlier attempt at self-harm involving a firearm, the remainder of your history in possessing firearms (since 5 June 1998) has been incident free. I also acknowledge your good character. Further, I placed weight on the letter received from Dr Bardon (Psychiatrist) which states, "In my opinion, Mr Huckel is capable of retaining his gun licence and using his guns safely and responsibly". Weight was also placed on comments from Dr Mussry who stated to police (on 15 August 2008) she considers that you are currently "a low risk of attempting self harm again". However, I am not satisfied that either Dr Bardon or Dr Mussry had extensive consultation with you nor am I satisfied that their conclusions were based on a thorough psychological assessment of you, as no such full assessment report has been received by the Firearms Registry. Further, based on the seriousness of your self-harm attempts I am not convinced that a similar incident will not be repeated. Notwithstanding the applicant's good character given the seriousness of the incident the public interest dictates that a decision maker err on the side of caution and, in effect, guarantee, by the revocation of the licence, that a similar incident will not be repeated. Section 11(4)(b) of the Act clearly implies that an attempt at self-harm should not be treated lightly if it gives reasonable cause to believe that the person may not personally exercise continuous and responsible control over firearms. Additionally, the Administrative Decisions Tribunal (ADT) has held that the principle issue is whether there is a risk to the safety of the public if a person retains their firearms licence. I commend the fact that you have received counselling and acknowledge that you are currently being treated for depression. However, due to recency of your self-harm attempt (on 10 August 2008) and the fact that this was not an isolated incident, I am not convinced that you pose 'virtually no risk' to public safety (that of your own) should you be subjected to future negative stressors in your life. The ADT has held that where there has been, or is, a possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm. In this regard Aubrey v The Commissioner of Police [2005] NSW ADT 266 provides (at paragraph 22): "The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk to public safety if (a person) were given access to a firearm. " The Tribunal agreed with that view that it is not in the public interest for a person to continue to hold a firearms licence if the Commissioner could not be satisfied that they did not present a danger to public safety. In addition, I note that you earn an income from "Kangaroo harvesting" and the consequences of the revocation of your firearms licence has incurred financial losses. Although, I am sympathetic of your circumstances, I cannot dispel my belief that 'public safety' is of paramount importance and public interest dictates that 'personal safety' (that of your own) overrides any financial inconvenience incurred. The ADT Appeal Panel held that loss of income is not an irrelevant factor in the exercise of discretion as to the licensing scheme under the Firearms Act but that whilst it is a relevant consideration it is to be weighed against the primary factor of the overriding need for public safety and also against all other relevant considerations. In conclusion I submit that at some time in the future, it may be held that your possession of firearms will cause no risk to the public (yourself). However, at this point in time I am satisfied that there remains reasonable cause to believe that you may not be capable of continuous and responsible control of firearms, due to your previous attempts at self-harm. Consequently I am of the opinion it would not be in the public interest for your firearms licence to be reinstated at this time. Accordingly, I find the Commission's decision was correct and preferable in the circumstances. [references omitted] 28 Mr Sheather submits that the Tribunal must have regard to the intention of the Act as protection of the community. He says that the safety of the public includes the safety of the applicant. The licence should not be issued if there is reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of his previous attempt to commit suicide. He says that there is clear evidence with respect to the applicant's mental health and his previous attempts at self-harm. The applicant has conceded three attempts at self-harm and at least one of those involved the use of a firearm. The applicant has also conceded that in breach of section 64(1) of the Act he handled a firearm while under the influence of alcohol or another drug. Mr Sheather submits that this gives rise to reasonable cause for concern about the applicant's conduct in the future. 29 The public interest requires that not only private interests be taken into account: Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 at 681. Mr Sheather submits that the case against the applicant outweighs the applicant's right to hold a firearms licence. 30 Mr Sheather submits that an issue of the applicant's integrity also arises because of his failure to notify of his previous attempts at self-harm when he applied for his firearms licence. He said that the firearms registry relies on the honesty of an applicant in determining whether they are fit and proper to hold a licence or whether it is in the public interest for them to do so. Checks are undertaken but the registry has no ability to access personal medical history and it therefore relies on the applicant's honesty. 31 Mr Sheather submits that if it were not for the incident on 10 August 2008, the respondent would not have known about the earlier self-harm attempts. He argues that the Tribunal could not be satisfied that a similar situation would not arise again if the licence were returned. 32 Mr Sheather submits that the relevant test for the Tribunal to apply is that set out in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 where the Tribunal held at paragraph [28]: "The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk." 33 Mr Sheather submits that in these circumstances the Tribunal cannot at this time be satisfied that there is "virtually no risk" if the applicant's firearms licence were to be restored. 34 Mr Sheather referred to Dr Bardon's evidence and his view that the applicant's firearms licence should only be returned if conditions were imposed restricting his access. Mr Sheather submits that a similar issue was raised in the matter of Sweet -v- Commissioner of police, New South Wales Police Service [2000] NSWADT 185. In that matter it was suggested that there was very little if any risk that Mr Sweet would not personally exercise continuous and responsible control over firearms in the context of a licence for target shooting at a club, however unrestricted access to a firearm was not recommended. 35 Deputy President Hennessy stated at paragraph [32] - [33] of that matter: 32 Even if it is accepted that Mr Sweet would use a firearm responsibly at a gun club, placing a condition on his licence that he leave the gun at the club is virtually unenforceable. There is nothing to prevent him from removing the pistol from the premises. It would not be practical or fair on the club to place any condition on their licence that Mr Sweet not remove the pistol from the premises. The club cannot be expected to monitor Mr Sweet to the extent necessary to ensure that he does not remove the pistol. 33 Dr Law's opinion was that Mr Sweet should not be allowed unrestricted access to a firearm. Given that any condition of the kind suggested by Mr Wiggins would not, in a practical sense, prevent unrestricted access to a firearm, I am not satisfied that it would be preferable to grant the licence subject to the conditions suggested. 36 Mr Sheather submits that a similar situation arises in this matter. A condition that the applicant only has access to firearms for the purpose of kangaroo shooting would be unenforceable. He relies on the decision in Health Care Complaints Commission v Litchfield [1997] NSWSC 297 as authority for the principle that such a condition should not be imposed. 37 In Litchfield the Court held that the necessity for imposing a condition on the appellant's registration (that the doctor only saw female patients with a chaperone) demonstrated he was unfit to practice medicine and in those circumstances the only appropriate order was one that prevented him from doing so. 38 Mr Sheather submitted that in this matter, if the Tribunal were to impose a condition that the applicant only has access to firearms for the purpose of kangaroo shooting, then such a condition would not only become difficult to enforce but it would also demonstrate that the Tribunal itself had concerns. That being the case, the authority should not be granted. 39 In the circumstances, the Tribunal could not be satisfied that it is in the public interest for the applicant to hold a firearms licence. Accordingly, the decision to revoke the licence should be affirmed. Findings 40 The respondent's decision was to revoke the applicant's licence on the basis that there remains reasonable cause to believe that he may not be capable of continuous and responsible control of firearms, due to his previous attempts at self-harm. 41 I agree with the Commissioner's assessment of the legal issues involved in this matter. The relevant test for the Tribunal to apply is that set out in Ward. The Tribunal must be satisfied that there is virtually no risk to public safety if the applicant were given access to a firearm. I also agree that the public's right to safety must outweigh an individual's privilege to possess and use a firearm or any financial impact that might flow from the loss of the licence. 42 The likelihood of risk is something to be assessed by reference to the applicant's prior conduct: Brosowski v Commissioner of Police [2003] NSWADT 182 at paragraph [41]. 43 The most relevant evidence of the applicant's mental state is Dr Bardon's oral evidence and his report of dated 25 August 2008. Dr Bardon's oral evidence clarified that given in his report in that he confirms the respondent's concern in regard to extent of the applicant's risk to himself. 44 Dr Bardon has assessed the current risk to the wider public, if the applicant had access to firearms, as low. However, his assessment of the risk to the applicant himself is much higher, unless the access is restricted by the imposition of conditions that would reduce the likelihood of risk from impulsive behaviour. 45 I agree with the Commissioner that such conditions would be unenforceable. They would not, in a practical sense, prevent the applicant having unrestricted access to a firearm. 46 I agree with the Commissioner that it is simply too soon after the incident of 10 August 2008 to be satisfied that there would be virtually no risk to public safety if the applicant's access to firearms were restored. It follows that the applicant's licence should not be reinstated yet. With continued treatment and monitoring I am confident that this situation will change. 47 Given the applicant's history of attempted self-harm and Dr Bardon's evidence that he should not be allowed unrestricted access to firearms, the Commissioner has made the correct and preferable decision in revoking the applicant's licence. Decision The Commissioner's decision to revoke the applicant's firearms' licence is affirmed.