Allouche v Commissioner of Police, New South Wales Police Force [2013] NSWADT 248

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Allouche v Commissioner of Police, New South Wales Police Force [2013] NSWADT 248 Hearing dates: 29 October 2013 Decision date: 05 November 2013 Jurisdiction: General Division Before: G D Walker, Judicial Member Decision: The decision under review is affirmed. Catchwords: Firearms licence - revocation-discretion-- grounds for exercise. Legislation Cited: Administrative Decisions Act 1997; Firearms Act 1996; Firearms Regulation 2006 Cases Cited: Bevan v Commissioner of Police [2004] NSWADT 1 French v Commissioner of Police [2013] NSWADT 221 Lynch v Commissioner of Police [2006] NSWADTAP 43 Vella v Commissioner of Police [2003] NSWADT 91 WN v Commissioner of Police [2007] NSWADT 72. Category: Principal judgment Parties: Tarek Allouche (Applicant) Commissioner of Police, New South Wales Police Force (Respondent) Representation: T Allouche (Applicant in person) Bartier Perry (Respondent) File Number(s): 133219

reasons for decision

Background 1The applicant Tarek Allouche on 22 July 2013 applied for a review of a decision by the Commissioner of Police on 13 May 2013 to revoke the applicant's category AB firearms licence No. 410734154. That decision had been affirmed by an internal review on 10 July 2013 (exhibit R1, tab 7). 2The Commissioner's initial decision to revoke relied on the fact that on 26 February 2013 the applicant was placed on a 12 months bond for the offence of failure to have approved ammunition storage. He also concluded that it would not be in the public interest for the applicant to continue to hold a firearms licence. 3The internal review affirmed that decision, again on the ground that the applicant was subject to a bond for an offence prescribed under cl. 5 of the Firearms Regulation 2006, and also because the applicant had contravened a licence condition by failing to maintain safe storage and because it was not in the public interest for the applicant to retain his licence. 4Pursuant to s 63 of the Administrative Decisions Tribunal Act 1997, the tribunal is to decide what the correct and preferable decision is, having regard to the material then before it. For that purpose it may exercise all the functions conferred or imposed by any relevant enactment on the administrator who made the decision. The issue in this case is thus whether the Commissioner's revocation of the applicant's firearms licence is the correct and preferable decision. 5On 2 December 2012 the applicant was found to be travelling in a motor vehicle with a Mr Bland Saleh, who police believed to be an associate of the Hell's Angels Outlaw Motorcycle Club (OMCG), the Soldiers of Allah, the Brothers for Life criminal gang (BFL) and the Notorious Organised Crime Network [sic]. He has a number of convictions for violent offences. 6Apparently as a result of that observation, police on 19 December 2012 conducted an unannounced inspection of the applicant's firearms storage. They found that he had contravened the storage requirements of the Act by failing properly to secure ammunition. He had left 2 boxes (32 rounds) of .243 cartridges, two boxes of shotgun shells and four boxes of .22-250 ammunition (totalling 80 rounds) unsecured. The last-mentioned cartridges were not compatible with the .243 rifle or the 12-gauge shotgun owned by the applicant. The applicant's firearms licence was thereupon suspended and the two firearms were seized. 7At Parramatta Local Court on 26 February 2013 the applicant pleaded guilty to the charge of not having approved ammunition storage. The charge was found proved but was dismissed under s 10 upon the applicant's entering into a good behaviour bond for 12 months. 8In their application for an internal review of the Commissioner's revocation decision, his then solicitors submitted that the applicant is a 20-year-old man who appeared before the Local Court with no criminal convictions and could be described as a person of prior good character. Shortly before this incident he had successfully passed a safe storage inspection. He pleaded guilty to the offence under s 40(1) of the Act at the first available opportunity, and expressed remorse and contrition for his offence. He resided (as he still does) in a stable family environment with his parents and an elder brother. He was gainfully employed full-time as a senior hairdresser. 9He had been compliant with police at all times and the inspection showed that both of his firearms were locked in an approved safe. His explanation for his failure to secure all the ammunition in his possession was that he had driven back from a hunting trip at Bendemeer, a five and a half-hour drive, had secured in his firearms and as much ammunition as he could fit in the safe and had fallen asleep exhausted. It was submitted that he had learned a significant lesson and was extremely unlikely to reoffend. 10The Firearms Act 1996 (the Act) s 24(2) provides as follows: (2) A licence may be revoked: (a) for any reason for which the licensee would be required to be refused a licence of the same kind, or (b) if the licensee: (i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or (ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or (iii) contravenes any condition of the licence, or (c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or (c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or (d) for any other reason prescribed by the regulations. (2A) If the Commissioner revokes a licence because the licence holder would be refused a licence on the grounds referred to in section 11 (5A), the Commissioner is not, under this or any other Act or law, required to give any reasons for revoking the licence on those grounds. (3) The Commissioner of Police may revoke a licence by serving personally or by post on the licensee a notice stating that the licence is revoked and the reason for revoking it. (4) The revocation of a licence by such a notice takes effect when the notice is served or on a later date specified in the notice. (5) The Commissioner may, by serving a further notice on the holder of a licence, cancel a notice revoking a licence before the notice takes effect.