Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Schettler v Commissioner of Police, NSW Police Force [2013] NSWADT 52 Hearing dates: On the papers Decision date: 05 March 2013 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: 1. The decision to impose the condition on the Applicant's firearms licence is set aside. 2. In its place the decision is made that the Applicant's firearms licence is to be subject to the condition that the Applicant is to notify the Respondent at least 48 hours before Nickolaus Martin Schettler has access to premises in which the Applicant's firearms are stored. Catchwords: Firearms Act - licence conditions Legislation Cited: Administrative Decisions Tribunal Act 1997 Firearms Act 1996 Category: Principal judgment Parties: Nickolaus Georg SCHETTLER (Applicant) Commissioner of Police, NSW Police Force (Respondent) File Number(s): 123067 reasons for decision 1GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): Mr Schettler, the Applicant, has held various licences authorising the use and possession of firearms since 1975. His current licence was issued under the Firearms Act 1996 on 10 July 2008 and will expire on 19 May 2013. 2The Applicant's licence was suspended on 3 January 2012. This followed the charging of his son with a number of serious criminal matters, including armed robbery. On internal review the Firearms Registry returned the licence, but imposed the following condition: "That your firearms not be stored at [the Applicant's residential address] or anywhere your son Nickolaus Schettler can access the firearms." 3The decision to impose that condition is the decision under review. Background 4Ms Tillott provided written submissions on behalf of the Respondent. In her submissions she provided the following background to the charges brought against the Applicant's son and the subsequent action taken in relation to the Applicant's licence: Criminal charges In 2005 the Wauchope Country Club was robbed by two men wearing balaclavas and armed with a small black pistol and a baseball bat. Staff members were forced to lie on the floor and their hands were tied behind their backs with cable ties. Two staff members were then forced to accompany one of the robbers to the safe where approximately $17,000 was stolen. In 2011 a DNA profile obtained from evidence collected at the scene identified a suspect. That suspect was arrested and confessed. Other suspects were later identified and arrested. It was at this time that the applicant's son was first identified as being involved in the offence. On 20 December, 2011, Police executed a search warrant at the applicant's home where he lives with his family and son, also named Nickolaus Schettler. Under his son's bed a number of prohibited weapons were located, including a Taser, Butterfly Knife, Oleoresin Capsicum Spray, Push Dagger, Knuckle Duster and Slingshot. The applicant's son was charged with the armed robbery at the Wauchope Country Club, and with possession of a number of prohibited weapons. Nickolaus Schettler Jnr was also the holder of a firearms licence. That licence was revoked on 3 January, 2012. ... Police were concerned that Nickolaus Schettler Jnr could access the applicant's firearms stored at the family home, so they suspended the applicant's firearms licence and seized his 15 firearms. They recommended that the applicant retain his licence, but that a condition be imposed on the licence requiring the firearms to be stored away from the family home, and out of the reach of the applicant's son. The Firearms Registry agreed, and in a notice dated 4 January, 2012, wrote to the applicant advising him of the condition ... The applicant requested an internal review of the decision to impose the condition on his licence. The decision was affirmed. 5By a letter dated 29 November 2012 Ms Tillott subsequently advised the Tribunal as follows: The applicant's son has now been sentenced. On 24 October, 2012 Judge G Neilson sentenced Nickolaus Martin Schettler to the following: · Possess or use prohibited weapon without a permit - Imprisonment 6 months to commence on 24 October, 2012 and expiring 23 April, 2013. (Concurrent with other sentences - a further five matters taken into account on a Form 1) · Robbery whilst armed with a dangerous weapon - Imprisonment 2 years 6 months to commence on 24 November, 2012 and expiring 23 May, 2015. Non-parole period 15 months. The offender to be released to supervised parole when the non-parole period expires. (This sentence is partly concurrent/partly consecutive with other sentences being served by the offender) ... Although the applicant's son has now been sentenced, the respondent continues to press for the special condition to be imposed. At the expiration of his non-parole period, or his release for any other reason, the Firearms Registry has no way of monitoring the applicant's son and his access to firearms if they were stored at the applicant's home. The Respondent's case 6As noted, Ms Tillott provided written submissions on behalf of the Respondent. Those submissions were filed prior to the conviction and sentencing of the Applicant's son. At that time he was on bail and committed for sentence. His conditional bail required, amongst other things, that he live at the Applicant's home. 7In the circumstances the Respondent was concerned that the Applicant's son could access the Applicant's firearms. 8The Respondent asserted that it is apparent from the number and type of items seized from the Applicant's son during the execution of the search warrant at the Applicant's home that the Applicant's son has a continuing interest in obtaining and keeping prohibited weapons. The Respondent noted that the Applicant's son also pleaded guilty to committing a robbery whilst armed. 9It is the Respondent's submission that the condition imposed is a reasonable one that strikes the right balance between the Applicant's desire to continue to participate in a sport that he loves, and the public interest in ensuring that firearms do not fall into the hands of people who are not licensed, or who might commit crimes. 10It is the Respondent's further submission that there is no evidence from the Applicant that he is unable to comply with the condition, or that compliance imposes an unreasonable burden on him. 11Ms Tillott also provided submissions in relation to the public interest. Those submissions were based on the view that a notional member of the public would object to a person on bail for armed robbery living in a house where they might access firearms. As that situation no longer exists I will not consider that argument. 12Ms Tillott also noted that it had been suggested to the Applicant that it might be prudent to wait until the completion of his son's sentencing before continuing with this application. For instance, if his son were sentenced to a term of imprisonment, the necessity to impose the condition may no longer exist. 13The Respondent nevertheless has continued to press its argument against the application. It submits that the Tribunal should leave the decision to impose the condition undisturbed. In the Respondent's view the imposition of the condition strikes the right balance between the Applicant's desire to keep his licence and the public interest in this matter. The Applicant's case 14The Applicant filed submissions with his application and photographs of his storage facilities. He has not filed any other material. In his submissions he wrote: I do not dispute the fact of my son's offences of armed robbery with an offensive weapon, for which he has pleaded guilty when first arrested. I would like to draw to your attention the fact that my son committed the crime over 400 kilometres away from my house. At the time of the offence, he was temporarily living in Port Macquarie and left soon after the crime was committed to find work in Coifs Harbour. He did not use any of my firearms as they were always locked away in a safe and I only had the keys. ... After 20 years of working a seven day roster in the public service I retired at 71 years of age. This was the first time I started to enjoy my target shooting again. I did not have to worry about working weekends (approximately three weekends per month). I was invited to come out to the club on Wednesday mornings by other shooters who had retired recently. Over the last 12 months I practice shooting twice a week on Wednesdays and Saturdays. The first Wednesday in each month from 5.00 PM to 7.00 PM is when the monthly club meeting is held and additional practice can be completed. The conditions in place on my licence make it difficult to enjoy my sport. ... At the present time I am updating my safe to make it more secure. The safe where my long arms are kept are being improved by double padlocks. The bolts and the lock for the long arms and will be kept separate in a floor safe. The single shot rifle will have a chain through the trigger gate and padlocked. The floor safe will have an extra padlock especially designed with two master keys for extra security. One key will be retained by me and the second will be held by the club armourer. ... Furthermore the crime that my son committed occurred seven years ago and my son has had no other trouble with the law. ... Discussion 15In my view, the condition imposed by the Respondent was reasonable at the time it was imposed and remained reasonable up until the imprisonment of the Applicant's son. Thereafter, the reason for the condition ceased to exist. 16I do not agree with the Respondent's view that the special condition should continue. There is no basis on which I could form the view that there is any more risk to the public now than at any other time during which the Applicant has held a firearms licence and storage at his home was approved. In my view, there is virtually no risk to the public if the Applicant were to hold a firearms licence without the condition. 17However, I accept that if the Applicant's son were released from prison and again resided with the Applicant, the situation would be different. The Respondent's concerns would again be justified and it may well reimpose conditions. For now, however, it is my view that the condition should be removed. 18I appreciate the Respondent's concerns. In my view, it would be reasonable to require the Applicant to notify the Respondent when his son is to be released from prison, if he proposes to live with the Applicant, so that a further assessment can be made. For that reason, I propose to impose the condition on the Applicant's licence to require the Applicant to do so. Order 1. The decision to impose the condition on the Applicant's firearms licence is set aside. 2. In its place the decision is made that the Applicant's firearms licence is to be subject to the condition that the Applicant is to notify the Respondent at least 48 hours before Nickolaus Martin Schettler has access to premises in which the Applicant's firearms are stored. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 March 2013