Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bryant v Commissioner of Police, NSW Police Force [2018] NSWCATAD 222 Hearing dates: 17 September 2018 Date of orders: 24 September 2018 Decision date: 24 September 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: K Ransome, Senior Member Decision: 1. The decision under review is set aside. 2. The decision is made that the applicant's application for a category ABD firearms licence is granted. Catchwords: ADMINISTRATIVE REVIEW – firearms licence – refusal – whether not in the public interest for applicant to hold a licence Legislation Cited: Firearms Act 1996 Cases Cited: Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) ALR 657 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Cook v Commissioner of Police [2003] NSWADT 30 Cusumano v Commissioner of Police [2001] NSWADT 50 Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117 Kopco v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 124 Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206 Ward v Commissioner of Police [2000] NSWADT 28 Wiltshire v Commissioner of Police [2005] NSWADT 75 Category: Principal judgment Parties: Daryl Michael Bryant (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Applicant in person Smythe Wozniak (Respondent) File Number(s): 2018/00196922 REASONS FOR DECISION 1. This is an application by Mr Daryl Bryant seeking review of a decision by the Commissioner of Police to refuse to renew his category ABD firearms licence which was due to expire on 31 October 2017. Mr Bryant applied to renew the licence on 22 August 2017 but his application was refused on 15 May 2018 under the Firearms Act 1996 (the Firearms Act), a decision which was affirmed on 4 June 2018. 2. The decision to refuse to renew the licence was made on the basis that it was not in the public interest for Mr Bryant to hold a firearms licence. That is the issue in this application. Background 1. Mr Bryant was first issued with a Category ABD firearms licence in February 1998 for the sole reason of Vertebrate Pest Animal Control. He held that licence continually for a period of over 20 years for six firearms. He had also held authorisations for firearms under previous legislation. His firearms storage facility at his home address was inspected on two occasions and approved. Mr Bryant has never been convicted of a criminal offence. 2. Mr Bryant's son, Nathan Bryant, resides with him at his address in Marulan. Nathan Bryant has resided at the premises since his release from prison following his conviction for several offences involving firearms. On 22 November 2016 Nathan Bryant was served with a Firearms Prohibition Order which prevented him from acquiring, possessing or using firearms. It is also an offence if a firearm or ammunition is kept or found at premises at which a person the subject of a Firearms Prohibition Order resides. 3. On 6 September 2017 police attended Mr Bryant's home to conduct a search in relation to Nathan's Firearms Prohibition Order. When asked if there were any firearms at the premises, Mr Bryant told police that one of his firearms was stored in a built-in wardrobe in the spare room. The police found a .22 calibre rifle in the unlocked wardrobe and, while no ammunition was located with the firearm, some .22 ammunition was found in the drawer of a dresser. The rifle and ammunition belonged to Mr Bryant. The firearm was seized and Mr Bryant's licence was suspended. 4. At the time of the police search, Mr Bryant's nominated firearm storage address was the home of his other son, Trent Bryant. Trent is also the holder of a firearms licence. Mr Bryant's other firearms were safely stored at Trent's address on 6 September 2017 and these were also later seized. 5. As a result of the discovery of the rifle, Mr Bryant was charged with the offence of "Not keep firearm safely". He pleaded guilty and the matter was dealt with at Goulburn Local Court on 25 October 2017. No conviction was recorded pursuant to s 10 of the Crimes (Sentencing Procedures) Act 1999. Evidence 1. The evidence of Mr Bryant is that he has been shooting since he was a young boy. He is now 66 years old and states he has held a firearms licence ever since such licences were introduced. His licence permitted him to shoot pest animals and he states that he has regularly shot rabbits and foxes on various properties in the area. 2. Mr Bryant provided a letter from the Manager of a property owned by the University of Sydney near Marulan. The letter states that Mr Bryant has been engaged and given permission to shoot vermin on the property over a period of about 28 years. The Manager speaks highly of Mr Bryant's trustworthiness and professionalism. 3. Mr Bryant said in his request for internal review of the refusal decision that he was very aware of his son's "conditions with guns". He said at the hearing, however, that he was not aware until he was issued with the Court Notice in relation to the .22 firearm that Nathan was subject to a Firearms Prohibition Order. He said that prior to Nathan's release from prison at the end of April 2015, Nathan's parole officer suggested that Mr Bryant remove his guns from the house prior to Nathan's return. At this point, Mr Bryant moved his guns to the gun cupboard at Trent's place and informed the Firearms Registry of the new storage location. 4. The Commissioner's representative states that it "defies logic" that Nathan would not have told his father about the Firearms Prohibition Order and not reminded him to not keep guns at home. He said this was particularly the case as Nathan would be guilty of an offence if a firearm was on the premises and he was very keen not to breach any of his parole conditions. 5. Mr Bryant said that Nathan had been out of prison for some 19 months before the Firearms Prohibition Order was issued and during that time Nathan had not obtained any firearms. He said Nathan has had a steady job since his release from prison and complied with all his parole conditions. He described Nathan as a "changed person" and said he is longer required to report to his parole officer in Goulburn as they are happy with Nathan's progress. 6. Mr Bryant stresses that he did not hide the fact that the rifle was in the house when the police attended on 6 September 2017 but volunteered the information. Sergeant Edward Taylor of Goulburn Police told me at the hearing that police would have easily located the firearm in any event. 7. Mr Bryant said that his usual practice was to get his gun from the gun safe at Trent's place after Nathan had gone to work and to take it back there after he had been shooting and before Nathan returned home. He said he did this on numerous occasions. 8. Mr Bryant said that he had been due to have a back operation on 28 August 2017 but his insurer had told him that he would face out of pocket costs in the order of $25,000 to $30,000. He said he had to rearrange everything for the operation so it could be carried out in the public hospital system as he could not afford that amount of money. He became pre-occupied with re-organizing the surgery which was then scheduled to take place on 12 September 2017 in Sydney and he forgot to return the gun to Trent's gun safe after being out shooting. Mr Bryant said he was going to return the gun the next day which was the day the police arrived and placed it in the wardrobe out of sight. He said Nathan was not aware that he had been out shooting and the gun was in the house. 9. In his police report of the incident Sergeant Taylor does not record that Mr Bryant mentioned to police about his back operation but Mr Bryant stated that he did tell police about his situation and the reason he forgot to return the gun to the safe at the time. Sergeant Taylor's evidence was that police from the Riot Squad were the first to arrive at the house as they were conducting the search in relation to the Firearms Prohibition Order. It may well be that Mr Bryant told these officers about his condition. 10. Mr Bryant acknowledged that he left the gun in the house for two days in the unlocked wardrobe. The respondent points out that there is a gun safe located at Mr Bryant's home but he did not lock the gun in that safe as a temporary measure. The respondent also states that the registered safe storage address is only 3 kilometers away from Mr Bryant's home and is therefore readily accessible to him. 11. Mr Bryant said that he is very well aware of public safety and refers to his long shooting history which has been without incident as well as his former work at a quarry where he was a supervisor responsible for the safety of up to 30 men. He states that he had never before failed to return his gun to its safe storage. Mr Bryant said that he made a mistake in not returning the gun to its safe storage on this occasion and has learnt his lesson for the future. The relevant law 1. The underlying principles of the Firearms Act are: 1. to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and 2. to improve public safety: 1. by imposing strict controls on the possession and use of firearms, and 2. by promoting the safe and responsible storage and use of firearms. 1. The Commissioner may issue or refuse a licence under s 11 of the Firearms Act. A licence must not be issued if the Commissioner considers that issuing the licence would be contrary to the public interest. In this case, the Commissioner submits that it is not in the public interest for Mr Bryant to continue to hold a firearms licence. 2. What is meant by the term "the public interest" has been discussed in many cases. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) ALR 657, it was stated at 681: "The purpose of the reference to 'public interest' is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation." 1. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25] the Appeal Panel said that the "public interest": "…is an inherently broad concept giving the appellant [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual." 1. In Cusumano v Commissioner of Police [2001] NSWADT 50, Deputy President Hennessy stated: "There is no guidance in the legislation in relation to how these discretions [to revoke firearms licences] should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act." 1. Importantly, s 3 of the Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Thus, it is the community's interests which take precedence over the private interests of an individual. In Ward v Commissioner of Police [2000] NSWADT 28 at [27-28] Deputy President Hennessy said that in terms of public safety: "27…The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms. 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." 1. That case dealt with whether the applicant was a "fit and proper person" to hold a licence, but the comments have been held to apply to the public interest test as well: Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206, [130] – [134]. 2. The question of risk is not, however, to be approached in an absolute or mechanistic way, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] – [66]. The question is whether there is in all the circumstances a real and appreciable risk to the public: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117 at [74]; Kopco v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 124 at [58]. 3. It has also been stated that the public interest requires that all licensees be aware of, and comply with, the legislative requirements: Cook v Commissioner of Police [2003] NSWADT 30. Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them: Wiltshire v Commissioner of Police [2005] NSWADT 75 at [25]. Consideration 1. There is no question that, prior to 6 September 2017, Mr Bryant had an unblemished record in his long history of gun ownership. He has no criminal convictions and there is no suggestion that he is of bad character or has a general disregard for the law. It is apparent these factors were taken into account by the Local Court when it dismissed the offence of "Not keep firearm safely" without conviction. 2. What is at issue in these proceedings is whether it is in the public interest for Mr Bryant to continue to hold a firearms licence. The principal issue in determining public safety is whether there is a risk to the safety of the public if Mr Bryant is granted another licence. The Commissioner submits, and I agree, that his failure to safely store his firearms is highly relevant to the public interest. Such a failure can have tragic consequences which, fortunately, did not occur in this case. 3. The Commissioner argues that Mr Bryant's conduct is of particular concern because his son Nathan is subject to a Firearms Prohibition Order. The Commissioner does not dispute that the Firearms Prevention Order was made some time after Nathan's release from prison, but states that Mr Bryant must have known about the order. I accept Mr Bryant's evidence that he was not aware that Nathan was subject to such an order until the events which led to this application. He was aware, however, that he should not keep his guns on the premises and, as a result, had changed his registered address to that of his other son, Trent. 4. Irrespective of whether Mr Bryant knew Nathan was subject to a Firearms Prevention Order, he did not return the rifle to its proper storage place but left it in an unlocked wardrobe. His evidence that Nathan was not aware that the gun was on the premises is not of any importance. The fact remains that he left the gun unsecured for two days. He did not even use the gun safe which was in fact located at his home which, if he had used it, would have meant that, at least, the gun was secured if not at the registered address. 5. I accept that at the time he left the rifle in the wardrobe Mr Bryant was preoccupied with the rescheduling and reorganizing of his back operation. This may give some insight into his behavior, but it does not excuse it. 6. The Commissioner submits that Mr Bryant's breach of gun safety and storage requirements is at the upper end of such offences. That, to my mind, is putting the incident in the worst possible light and is an unwarranted characterisation of what, while it is serious, is not at the worst end of such conduct. 7. Mr Bryant is to be commended for being forthcoming with police when they attended the premises and readily admitting he had a gun on the premises. It is clear from the letter from the University of Sydney that he is well regarded and had had a long association with the University in carrying out vermin control on the property near Marulan. While there are no doubt others who can perform that service, it is a valuable service which he has provided for nearly 30 years. Mr Bryant is now retired and clearly enjoys his shooting activities. 8. There is no evidence that Mr Bryant has regularly left his guns unsecured and his uncontroverted evidence is that he had never done anything like this before. I accept Mr Bryant's statement that he has "learnt his lesson" and consider that he will take appropriate steps to secure his firearms in the future. I also consider that, now he is aware of Nathan's Firearms Prohibition Order, he would not do anything to jeopardise his son's position who he regards as having broken away from his former life. 9. I do not agree that, when all the circumstances are considered, there is a real and appreciable risk to the public if Mr Bryant is granted a further firearms licence. I am mindful that he has been without his licence for a year and consider that is an appropriate penalty in any event for his lapse of judgment. 10. In the internal review decision and at the hearing, the respondent raised the issue of Mr Bryant's ability to exercise continuous and responsible control over firearms due to a disability or medical condition. While Mr Bryant has been on the Disability Support Pension in the past and clearly has a serious back condition, there is no medical evidence before me which would indicate that his disability would affect his ability to fulfil his responsibilities if issued with a further licence. 11. In all the circumstances, I am satisfied that there is no reason, based on public interest grounds, to refuse Mr Bryant's application for a firearms licence. The licence should be granted. Order 1. The decision under review is set aside. 2. The decision is made that the applicant's application for a category ABD firearms licence is granted. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 24 September 2018