Plunkett v Commissioner of Police, NSW Police Force [2009] NSWADT 104

CITATION: Plunkett v Commissioner of Police, NSW Police Force [2009] NSWADT 104

DIVISION: General Division

APPLICANT Steven John Plunkett PARTIES: RESPONDENT Commissioner of Police, NSW Police Force

FILE NUMBER: 088313

HEARING DATES: 15 January 2009

SUBMISSIONS CLOSED: 15 January 2009

DATE OF DECISION: 13 May 2009

BEFORE: Montgomery S - Judicial Member

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

LEGISLATION CITED : Firearms Act 1996 Firearms Regulation 2006

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380; 94 ALR 11Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 Coates v Commissioner of Police [2001] NSWADT 5 CASES CITED: Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Osborn v The Commissioner of Police [2007] NSWADT 126 Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28

APPLICANT C O'Brien, solicitor REPRESENTATION: RESPONDENT G De Courcey, solicitor

ORDERS: The decision under review is affirmed

REASONS FOR DECISION 1 The Applicant was issued with a Category AB firearms licence on 5 September 2003. The licence was suspended in September 2005 and then revoked in August 2008. 2 The Commissioner's decision to revoke the Applicant's licence was affirmed on internal review. The statement of reasons provided to the Applicant in regard to the internal review determination set out the background to the revocation. Background 3 It is not in dispute that the Applicant was a serving Police Officer for 20 years. He was suspended from duty in September 2005 and resigned from the New South Wales Police Force as of April 2008. 4 In October 2006 proceedings were brought against the Applicant under the Copyright Act 1968 (Cth) regarding the possession of DVDs for sale. In January 2008 the Newcastle Local Court found him guilty of 11 charges of possessing 11 DVDs for the purpose of distribution. He was fined $2000 on each charge. On appeal, the Federal Court imposed a total penalty of $2,200 plus Court costs of $70. 5 Other charges brought against Applicant for the offences of obtain benefit by deception and embezzlement were dismissed. 6 The Applicant applied to the Tribunal for review of the determination to revoke his licence. The matter came before me for hearing on 15 January 2009. At the conclusion of the hearing I reserved my decision. Relevant legislation 7 Section 24(2)(a) of the Firearms Act 1996 ("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. 8 Section 11 of the Act provides 11 General restrictions on issue of licences … (3) A licence must not be issued unless: (a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, and ... (7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest. (8) The regulations may provide other mandatory or discretionary grounds for refusing the issue of a licence. 9 Section 24(2)(c) of the Act prescribes that the Commissioner of Police may revoke a firearms licence if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence. 10 Section 24(2)(d) of the Act prescribes that a firearms licence may be revoked for any reason provided by the regulations. 11 Section 25 of the Act provides that if a licence is suspended or revoked, the person to whom it was issued must immediately surrender to a police officer any firearm in the person's possession. Section 4 of the Act defines the meaning of the word 'possession'. That section provides 4 Definitions (1) In this Act: … possession of a firearm includes any case in which a person knowingly: (a) has custody of the firearm, or (b) has the firearm in the custody of another person, or (c) has the firearm in or on any premises, place, vehicle, vessel or aircraft, whether or not belonging to or occupied by the person. 12 Section 4A of the Act provides: 4A Meaning of "possession" of a firearm—proof of possession (1) Without restricting the meaning of the word possession, for the purposes of any proceedings under this Act, a firearm is taken to be in the possession of a person so long as it is in or on any premises owned, leased or occupied by, or in the care, control or management of, the person, unless the court is satisfied that: (a) the firearm was placed in or on, or brought into or on to, the premises by or on behalf of a person who was lawfully authorised by or under this Act to possess the firearm, or (b) the person did not know and could not reasonably be expected to have known that the firearm was in or on the premises, or (c) on the evidence before it, the person was not in possession of the firearm. 13 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 Commissioner's case 14 The Commissioner contends that the applicant is not a fit and proper person to hold a firearms licence and that it is not in the public interest for him to hold a licence. 15 The Commissioner argues that the Applicant's criminal convictions are highly relevant when considering the Applicant's suitability to hold a firearms licence. The Commissioner submits that those convictions, which relate to conduct unbecoming of a serving police officer, seriously lessen the weight that is to be assigned to factors in the Applicant's favour as his conduct demonstrates that he cannot be trusted to always obey the law. 16 The Commissioner also points to the fact that the Applicant did not cooperate with Police regarding the matters that lead to his convictions or the other charges brought against him. In particular, the Commissioner also points to the fact that the Applicant did not cooperate with Police regarding the location of an Anschultz rifle that was registered to the Applicant and that had not been seized by Police when the Applicant's licence was suspended in September 2005, or since that time. 17 The Commissioner concedes that the Applicant has a lengthy history of authorisation to possess and use firearms and many years of experience in weapons training. He has never been the subject of complaints regarding the safe handling of firearms. However, the Commissioner contends that the Applicant has contravened firearms legislation by failing to surrender the Anschultz rifle. 18 It is not in dispute that Police seized most of the Applicant's firearms on 28 September 2005. On that occasion the Anschultz rifle was not at the Applicant's premises and the Applicant stated that he didn't know where it was. The Police thereafter understood that the firearm was lost. The Applicant subsequently remembered that he had placed the rifle in a gun safe owned by Chad Owen, a current firearms licence holder, and that it was properly secured. It is also not in dispute that the Applicant did not inform police of the location of the rifle once he remembered where it was stored. 19 The Commissioner argues that pursuant to section 39 of the Act the Applicant was responsible for ensuring that his firearms were not stolen or lost. Further, section 37(1)(b) of the Act provides that a person in whose name a firearm is registered must immediately notify a police officer if the firearm is lost or stolen. For the purposes of the Act, the Anschultz rifle was lost if the Applicant did not know where it was. 20 The Commissioner submits that as a former Police Officer the Applicant would have had a better understanding than the average licence holder of the need to report the loss of a firearm and the public risk caused by the failure to report such a loss to Police. 21 The Commissioner submits that the delay in contacting the Police suggests that the Applicant does not understand the significance of the loss or theft of a firearm and the fact that the firearm could be in the hands of a criminal: Osborn v The Commissioner of Police [2007] NSWADT 126 at paragraph [47]. 22 The Commissioner contends that once the Applicant became aware of the location of the firearm he was under a duty to inform the Police of that fact. He failed to correct the misunderstanding by the Police that the firearm was lost. Even though he has filed evidence with respect to the location of the firearm in this matter, he has still not taken that step nor has he surrendered the rifle to the Police. 23 The Commissioner is also concerned that the Applicant has been associated with members of an outlaw motorcycle gang ("OMCG"). It is common ground that the Applicant was advised by senior Police Officers in relation to that association. However, the Commissioner contends that the Applicant appears to have ignored that advice and continued with those associations. The Commissioner submits that a close association with an OMCG is not compatible with responsible firearms ownership. 24 The Commissioner relies on the decision in Coates v Commissioner of Police [2001] NSWADT 56 at paragraphs [33]-[34], where Deputy President Hennessy held that the decision maker would be justified in revoking a licence if there is evidence sufficient to give rise to a finding that a licence holder may not personally exercise continuous and responsible control over firearms in the absence of convictions of a criminal offence or evidence that a firearm has been used irresponsibly or unsafely. In exercising the discretion to revoke a licence, the decision maker must keep in mind the principles and objectives of the Act, which confirm that possession and use of firearms is a privilege, that is conditional upon public safety. 25 The Commissioner contends that the Applicant's firearms licence was issued for recreational hunting. The Commissioner submits that the public interest in the maintenance of a safe and responsible system of possession and use of firearms must outweigh the Applicant's desire to pursue a recreational activity. Accordingly, the Commissioner submits that the decision should be affirmed. The Applicant's case 26 It is not in dispute that the Applicant has been a Police Officer for 20 years, with experience in weapons training and safe handling. At no time has he had any complaints regarding the safe handling of firearms, nor has he been charged with any breaches of the Act or any matters of violence of any kind. 27 The Applicant relies on his own evidence and that of Mr Chad Owen. 28 The Applicant's case is essentially that there is no reason to suggest that he is not a fit and proper person to hold a firearms licence. He concedes that he has been convicted of breaches of the Copyright Act regarding the possession of 11 DVDs for the purpose of distribution. It is not in dispute that the breaches related to an attempt by the Applicant to raise funds to assist his daughter play basketball in America. He stated that he is remorseful for that conduct. He asserts that notwithstanding those convictions he is a person of good character. He does not rely on any references to support that contention however he points to Court decisions containing comments that he says recognise his otherwise good character. 29 He also conceded that he had been charged with offences relating to obtaining money by deception, using a false instrument and receiving stolen property. It is not in dispute that those charges were dismissed at Newcastle Local Court and that costs were ordered in the Applicant's favour. The Applicant submits that no weight should be given to the fact that those charges were brought against him. 30 The Applicant denies that he has an improper association with any member of an OMCG. He denies that there has ever been a sustained finding against him for improper association and illegal computer accesses with OMCGs. He does not dispute that he was a friend of two persons who Police believed were members of an OMCG. He stated that about 5 years ago police internal affairs directed that he not associate with one of those persons and said that he has not done so since that direction was given. He also stated that the other person concerned was not a member of an OMCG when the Applicant met him but that person is now a member of an OMCG. 31 The Applicant conceded that in 2005 he organised a motorcycle run as a charity fund raising event. He stated that a total of 105 riders participated in the ride and that of those participants five members of the Rebels OMCG attended the ride. He stated that the run was for charity purposes and was arranged with the full knowledge and support of the New South Wales Police Citizens Youth Club. 32 Mr O'Brien, solicitor for the Applicant, filed written submissions on which he relies. In those submissions he challenges much of the basis for the Commissioner's determination to cancel the Applicant's licence. Mr O'Brien's submissions concluded: "The decision of the Commissioner was based upon information that was misleading, deceptive, inaccurate, incorrect and/or false. When considering all of the materials before the tribunal, it is clear to see that the original decision and the reviewed decision were made by the commissioner on material that was incapable of being supported by any evidence. What is accurately supported by evidence is: 1. The applicant is 50 years of age, 2. The Applicant gives evidence that is unchallenged. 3. The applicant has no criminal history but for 11 (albeit minor) breaches of the Copyright Act. 4. The various decision by the Courts have indicated that the breach of the Copyright Act were accepted as a 'modest endeavour to try and raise some money for his daughter to go to America' and not the substantial criminal enterprise as inferred by the informant. 5. The applicant is of otherwise good character; a point recognised by the Newcastle Local Court and the Federal Magistrates Court. 6. There is no evidence that the Applicant has criminal associations. 7. There is no evidence of any breach of gun laws. 8. There is no basis for determining that the Applicant is a danger to the public. 9. There is evidence that the Applicant is contrite for the breach of Copyright." 33 The Applicant conceded that he was not prepared to co-operate with Police about the prosecution for breaches of the Copyright Act or the other charges brought against him. He agreed that in September 2005 he had told the Police that he didn't know where the Anschultz rifle was located. His evidence was that he later remembered that the rifle was stored in Mr Owen's safe but he agreed that he did not inform the Police of that fact. He argued that he was not obliged to inform the Police, as the rifle was not lost. He also submitted that he was under no obligation to surrender the rifle to Police, as it was not in his possession. 34 Mr O'Brien's submitted that the Tribunal has the power pursuant to section 63(3)(c) of the Administrative Decisions Tribunal Act 1997 to set aside the decision and to substitute a decision to allow the Applicant to have his firearms licence re-instated. It is the desire of the Applicant for the Tribunal to set aside the decision of the reviewer and to substitute the decision to have his firearms privileges restored. Discussion 35 The Tribunal's role is to decide what the correct and preferable decision is having regard to the material then before it. The Commissioner contends that the Applicant is not a fit and proper person to hold a firearms licence and that it is not in the public interest for him to hold a licence. It is necessary to consider those issues. Is the Applicant a Fit and Proper Person to Hold a Licence? 36 It is well established that the term "fit and proper person" standing alone carries no precise meaning and that it must take its meaning from its context and the activities a person is to be licensed to perform. In assessing whether a person is a "fit and proper person" the Tribunal has followed the following statement of Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380; 94 ALR 11 at 65: "The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of a person who will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not a fit and proper person to undertake the activities in question. 37 In that case the question was whether the holder of a commercial broadcasting licence under the Broadcasting Act 1942 (Cth) continued to be a "fit and proper person" to be the holder of such a licence. Toohey and Gaudron JJ, at 382, went on to consider the role of commercial broadcasting and the obligations of a licensee. Their Honours stated that these obligations included an obligation to the community that the licensee would not abuse its potential for powerful influence. Mason CJ stated that the concept "fit and proper person" should not be construed narrowly. 38 That approach has been followed in this Tribunal. See, for example, Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 where Higgins JM stated at paragraph [22]: 22 In my opinion, the term "fit and proper person" in s. 11(3)(a) of the Act should also be given a wide meaning. As stated by Mason CJ the breadth and content of the concept must be derived from the Act and the purposes of the Act. In this case, Parliament has expressly stated what the underlying principles of the Act are. This includes the principle that the possession of a firearm is a privilege and that it is conditional on the overriding need to ensure public safety (see s. 3(1)(a)). Accordingly, the fitness and propriety of a person under the Act must be considered in the context of at all times ensuring public safety. In my opinion Parliament has made this clear with the additional words in s. 11(3)(a) of "… and can be trusted to have possession of firearms without danger to public safety and the peace." That is, s. 11(3)(a) of the Act requires the Commissioner to determine the fitness and propriety of an applicant for a licence by having regard to the Applicant's conduct and whether that conduct is such that he can be satisfied that the Applicant can be trusted to have possession of firearms without danger to public safety or to the peace. 39 In the present matter, the Commissioner contends that the Applicant's criminal convictions seriously lessen the weight assigned to his previous good record and firearms licence history. In contrast to that argument, the Applicant asserts that the convictions relate to minor breaches of the Copyright Act and that he is of otherwise good character. The Applicant is contrite for the breach of the Copyright Act but he has maintained his innocence in relation to the other issues raised by the Commissioner. He has not presented any references or other material that might balance the weight that the convictions are to be given. He relies on the views expressed by the Courts to provide that balance. The Applicant denies that he has any ongoing association with any member of an OMCG. I have no basis on which to conclude otherwise. 40 In the circumstances, having weighed the material before me, it is my view that the Applicant can reasonably be regarded as a fit and proper person to have possession of firearms. 41 However, as was noted in Barlow v Commissioner of Police, section 11(3)(a) of the Act provides that a licence must not be issued unless the Commissioner is not only satisfied that the Applicant is a fit and proper person but also that he "can be trusted to have possession of firearms without danger to public safety or to the peace". I have concerns that the Applicant does not have sufficient knowledge and understanding of the obligations imposed on a licensee to be able to satisfy this requirement. 42 The underlying principles of the Act stated in section 3(1) emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, at paragraph 28, Deputy President Hennessy said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk". 43 The Applicant gave oral evidence and was cross-examined. There is clearly considerable animosity between the Applicant and some members of the Police force. It is equally clear that the Applicant has adopted an attitude of non-cooperation with the Police. In my opinion, this attitude is not compatible with responsible firearms ownership. 44 The Applicant's failure to communicate with the Police in regard to the Anschultz rifle is indicative of his attitude. I disagree with his argument that he had no obligation to inform the Police of the location of that rifle. In my view, the Applicant's argument is based on a restrictive interpretation of the meaning of the term "possession" of a firearm. Section 4A of the Act provides that "[w]ithout restricting the meaning of the word possession, for the purposes of any proceedings under this Act, a firearm is taken to be in the possession of a person so long as it is … in the care, control or management of, the person …". In my view, the evidence supports the finding that the Anschultz rifle was in the Applicant's control. It was merely being stored at Mr Owen's premises. It was therefore in the Applicant's possession. 45 That being the case, pursuant to section 25 of the Act, the Applicant was under an obligation to surrender the Anschultz rifle to a Police Officer. His attitude of non-cooperation with Police, coupled with his lack of sufficient knowledge and understanding of the obligations imposed on him a licensee, resulted in his failure to comply with that obligation. I accept that the rifle is not lost. However, that does not remove the Applicant's obligation to surrender it to a Police Officer. 46 Until the Applicant takes active steps to improve his knowledge and understanding of the obligations imposed on a licensee, the Commissioner could not satisfied that he can be trusted to have possession of firearms without danger to public safety or to the peace. For this reason, it is my view that the Applicant should not be permitted to hold the licence. The Commissioner was authorised to refuse a licence application by the Applicant for this reason and therefore, pursuant to section 24(2)(a) of the Act, there is also a basis on which the licence may be revoked. Is it not in the public interest for the Applicant to hold a licence? 47 In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at paragraph [25], the Appeal Panel said that the 'public interest' "is an inherently broad concept giving [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual". 48 In my view, the factors related to whether the Applicant can be trusted to have possession of firearms without danger to public safety or to the peace are equally relevant to this issue. On the material before me, it is my view that it is not in the public interest for the Applicant to hold a licence at this time. 49 It follows that the decision taken by the Commissioner to revoke the Applicant's licence is the correct and preferable one and it should be affirmed. Discussion The decision under review is affirmed