Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Jameson v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 25 Hearing dates: 29 January 2019 Date of orders: 07 February 2019 Decision date: 07 February 2019 Jurisdiction: Administrative and Equal Opportunity Division Before: Emeritus Prof G D Walker, Senior Member Decision: (1) Decision under review set aside. (2) The applicant's category ABH firearms licence is to be restored to him. Catchwords: LICENSING - firearms – safe storage contravention – handguns stolen – licence revocation – persuasive and relevant circumstances favouring restoration of licence. Legislation Cited: Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Crimes (Sentencing Procedure) Act 1999 (NSW); Firearms Act 1996 (NSW); Firearms Regulation 2017 (NSW). Cases Cited: Bevan v Commissioner of Police, New South Wales Police Service [2004] NSWADT 1; Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657; Commissioner of Police, New South Wales Police Service v Toleafoa [1999] NSWADTAP 9; Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16; Cook v Commissioner of Police [2003] NSWADT 30; Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 30; Director of Public Prosecutions v Smith [1991] Vic Rep 6, (1991) 1 VR 63; Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; Hill v Commissioner of Police, New South Wales Police Service [2012] NSWADT 218; Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31; Lynch v Commissioner of Police (GD) [2006] NSWADTAP 43; McDonald v Director-General of Social Security [1984] FCA 57, 1 FLR 354; Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66, (1992) 110 ALR 449; O'Sullivan v Farrer [1989] HCA 61, (1989) 168 CLR 210; Uzelac v Commissioner of Police [2003] NSWADT 226; Yaghi v Commissioner of Police, New South Wales Police Service [2001] NSWADT 91. Texts Cited: Nil Category: Principal judgment Parties: Barry J Jameson (Applicant) Commissioner of Police, New South Wales Police Force (Respondent) Representation: Solicitors: Hartmann & Associates (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2018/00289508 Publication restriction: Nil Reasons for decision 1. The applicant Mr Barry J Jameson applied to this tribunal on 21 September 2018 for review of a decision by the respondent Commissioner to revoke his category ABH licence No. 411316288 under the Firearms Act 1996. The licence was for a term of five years, expiring on 24 March 2020. The decision to revoke was affirmed on 28 August 2018 following an internal review. 2. The applicant had been issued with a category A licence and a probationary pistol licence for the purposes of target shooting on 5 February 2015. On 3 June 2015, category B (also for target shooting) was added to his existing licence, to expire on 24 March 2020. On 18 April 2016, category H was added to his existing category AB licence, to expire on 24 March 2020. That was the licence that was revoked on 31 January 2018. Before his licence was revoked, the applicant had purchased five handguns (including one airgun) and three long arms. 3. The circumstances giving rise to the revocation were that during the night of 24 November 2017, a thief entered the applicant's open garage, opened the boot of his unlocked vehicle and stole his five handguns, four of which were in a locked metal box in the boot. The wrongdoer, who was well known to police, was subsequently apprehended and charged, but two of the five stolen pistols remain unaccounted for. On 29 November 2017 police attended at the applicant's residence, suspended his firearms licence and impounded three long arms that were in his possession. 4. On 30 January 2018 at Wollongong Local Court the offence of failing to keep a firearm safely under s 39 of the Firearms Act was found proven against him. No conviction was recorded but he was required to enter into a bond to be of good behaviour for six months under s 10 of the Crimes (Sentencing Procedure) Act 1999. The applicant is aged 71 years and has never previously been charged with any offence. Applicable legislation 1. Section 24(2) of the Firearms Act 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. 1. Clause 20 of the Firearms Regulation 2017 provides that "The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold a licence". 2. The general requirements for safe keeping are set out in s 39(1): 39 General requirement (1) A person who possesses a firearm must take all reasonable precautions to ensure: (a) its safe keeping, and (b) that it is not stolen or lost, and (c) that it does not come into the possession of a person who is not authorised to possess the firearm…. 1. The applicant held a category ABH licence. The specific requirements for the AB category are laid down in s 40(1): 40 Category A and category B licence requirements (1) The holder of a category A or category B licence must comply with the following requirements in respect of any firearm to which the licence applies: (a) when any such firearm is not actually being used or carried, it must be stored in a locked receptacle of a type approved by the Commissioner and that is constructed of hard wood or steel and not easily penetrable, (b) if such a receptacle weighs less than 150 kilograms when empty, it must be fixed in order to prevent its easy removal, (c) the locks of such a receptacle must be of solid metal and be of a type approved by the Commissioner, (d) any ammunition for the firearm must be stored in a locked container of a type approved by the Commissioner and that is kept separate from the receptacle containing any such firearm, (e) such other requirements relating to security and safe storage as may be prescribed by the regulations…. 1. As the applicant's license also covered category H, he was bound by the requirements in s 41(1): 41 Category C, D and H licence requirements (1) The holder of a category C, category D or category H licence must comply with the following requirements in respect of any firearm to which the licence applies: (a) when any such firearm is not actually being used or carried, it must be stored in a locked steel safe of a type approved by the Commissioner and that cannot be easily penetrated, (b) such a safe must be bolted to the structure of the premises where the firearm is authorised to be kept, (c) any ammunition for the firearm must be stored in a locked container of a type approved by the Commissioner and that is kept separate from the safe containing any such firearm, (d) such other requirements relating to security and safe storage as may be prescribed by the regulations…. 1. In this case the Commissioner does not contend that the applicant is no longer a fit and proper person to hold a licence, but relies on s 24(2)(d) and cl 20. The issue in this case is therefore whether the tribunal is satisfied that it is not in the public interest for the licensee to continue to hold a licence. The evidence 1. In his oral evidence at the hearing, Mr Jameson said inter alia that he had pleaded guilty in the Local Court to the offence of failing to store his handguns safely. On the evening of the theft, 24 November 2017, he had arranged with his partner to go to the pistol range the following day. He placed four of his handguns in a locked case in the boot of his car, with an air pistol in a firearms bag and the ammunition stored separately. The household burglar alarms had not been activated. The following day he saw that the garage was open, and that the boots and doors of all three of his cars were open. 2. The metal box containing the four guns had been stolen, as had the airgun. The ammunition had not been taken. He telephoned the police at once to report the breaking and entering. The police asked him to download his CCTV footage, which led to the arrest of the suspected thief. 3. The safe storage arrangements at the house already exceeded the legal requirements, but following the theft Mr Jameson took additional steps to upgrade it, including engaging an electrician to install bright LED lights in the living room that would illuminate any time one of the garage doors was open. When his firearms were in their case in the boot of his car, he now always secured the case with a locked metal chain. He had undertaken another firearms safety course and had pursued further enquiries to ensure that he was fully aware of all regulatory requirements. His partner checks all the security arrangements every night. He had learned an expensive lesson and would not dream of leaving any firearms in his car. 4. Until his licence was revoked, it was his practice to shoot at the range with his partner, Ms Broadhead, up to twice a week. Now he accompanied her to the range weekly, as she was a regular participant and still held her licence. When younger, Mr Jameson had been active in a range of sports but was no longer able to engage in them. Consequently, his membership of the pistol club was very helpful. It was a very good group, with 40 or 50 members, and was marked by strong camaraderie. They would go on shoots as a club and had participated in one overseas competition. 5. His offence had been an act of great stupidity, but he had thought there was no great risk as the car was at home and the garage was locked. He did not minimize the gravity of the episode and was seriously concerned with the fact that while three of the guns had been recovered, there were still two others out there that could be used in the commission of a crime. He had discussed his worries with police, who had assured him that in that event the person who pulls the trigger is the one who is responsible. 6. In cross-examination the applicant said that at the time of the offence he had undergone two knee replacements, and one attempt had not been successful. This had therefore been a one-off incident at a time when he found it awkward to bend down sufficiently to place the case in the boot. Now it is his partner who places the box in the boot and removes it, whenever they go to the range. He had placed the guns in the car in the late afternoon of 24 November, so the guns were in the car for 12 to 15 hours. 7. The garage doors were automatic and were activated by a remote control, but at the time the remote had no cover over the buttons and that had caused problems on occasion as he kept it in his back pocket and it would sometimes open the doors when he sat down. The garage door had not been open when he had placed the gun case in the boot. 8. At the time he had, and still has, and ultra-secure gun storage room located on the ground floor. It has three doors with seven deadlocks and an alarm system that is permanently switched on. It had been activated at the time of the breaking and entering. At the time it was not their practice to activate the alarm system on the ground floor, but now they had adapted the system so that it is possible to activate it for one floor only. He was aware of the police information sheets regarding safe storage and other matters and noted that there appeared to be an ambiguity in relation to the arrangements required where the vehicle was a hatchback as against having a boot. He acknowledged that the guidelines stated that leaving firearms in a vehicle for an extended period was not acceptable. 9. The applicant's partner Ms Sandra Broadhead JP adopted her statement filed on 27 November 2018 (part exhibit A1) in which she said inter alia that she has known the applicant for 40 years, first as an employer, then as a friend and then, after both their spouses passed away, they became a couple just over five years ago. While starting their lives again in their mid to late 60s, they sought something they could both participate in and enjoy. They decided to try pistol shooting and to their surprise both enjoyed it, becoming very involved in their club and also in the comradeship with other club members. They both felt they had a purpose in their lives again. Barry always took his responsibilities in relation to the proper use and storage of firearms very seriously, and they did it as a joint exercise, to the extent of having an alarm system installed in the room where his gun safe was situated. The incident involved in this case was out of character, in light of how seriously he took his responsibilities. 10. As soon as Barry discovered he had been robbed, he was "devastated" knowing that five of his pistols were out there and someone could potentially be killed or injured because of his error of judgment. That feeling of remorse has not left him, and each night when they watch the news and there has been a shooting (normally between gangland members), he prays he was not the cause of the shooting. He brings the subject up constantly, worrying about that aspect of the robbery. When talking to their friends about it, the first thing he tells them is how worried he feels about anyone getting hurt with his pistols, and how sorry he is. They could be sitting just reading or watching television, when he will bring up the case and say why did I do that, what was I thinking, I am so sorry. It weighs heavily on his mind. 11. They had always attended the gun club together, they did competitions together and went to Norfolk Island for a competition together, so loss of his licence had had a serious effect on her life as well. After they went home following a shoot, they would discuss the day, and whether they had shot well or badly. Their aim was just to be good target shooters, trying to beat their score each week. Barry, who had never done anything wrong in his 71 years, made one serious mistake, for which he is being punished for the rest of his life. 12. In oral evidence at the hearing, Ms Broadhead stressed that shooting was an important part of their lives and do something they could do together, once or twice a week. The applicant had been devastated and repeatedly said it was a stupid act and somebody might get hurt as a result. He even speaks that way today. She herself is shooting less at present because they used to shoot together and discuss their performance. The event had affected Mr Jameson's understanding of the requirements for safe storage and he had undertaken another safety course. He would never do the same thing again. 13. In cross-examination the witness said the applicant had placed the guns in the car the day before they were to attend the range because of the difficulties he had as a result of the double knee replacement surgery that had failed. Now they always load the car on the same day they are going shooting. 14. Mr Marten Teal, an engineer by profession, adopted his reference of 12 March 2018 (part exhibit R1), in which he stated that he is the club captain of Campbelltown/Liverpool District Pistol Club Inc. and has known the applicant since he started at the club. He had found him to be vigilant in the security and safe keeping of firearms at all times, to, from and at the club premises. He is a retiree who was always ready to render assistance to anyone in need and is a financial member who actively participates in club activities. 15. Because of physical restrictions, Olympic-style pistol shooting is one of the few sports the applicant is able to participate in competitively. In addition to that, the social network at the club has become extremely important to his happiness and well-being. He has never denied that he made a mistake that day and was very remorseful, but Mr Teal believes he can guarantee that he would never make that mistake again. At the time he had been recovering from a double knee replacement and it was obvious that he was in much pain and found it very difficult to bend down or kneel. That was the initial reason for the lapse. 16. Since the incident, Mr Teal had been in close contact with him and knew that he had increased the security at his safe keeping address, in addition to that which he had previously had. Mr Teal had personally discussed and confirmed that the applicant is knowledgeable on all current safe keeping requirements. In his opinion, the error of judgment was absolutely unrepeatable act. After many hours of conversations with the applicant, he understands that he is disappointed in himself. He behaved in a totally honest and selfless manner by helping to ensure that the criminal who stole the equipment was apprehended as soon as possible. 17. If the applicant's target shooting licence were to be cancelled, he believes they would lose a great role model in the community of target pistol shooting and is certain that Barry would be devastated if he was unable to continue target shooting with his close friends and family members. In oral evidence the witness said that the applicant had been open about the event and had made it known at the club. He was a very active member and a pillar of the community. Both he and Ms Broadhead were regular participants, two or three times a week. The witness had gone over the legislation with him and had put him through another training course. He would be the last person to do something like that again, he could guarantee that. 18. In cross-examination the witness said he was in control of range safety and training and thought the applicant was very sincere. He had thought he was aware of the requirements before the incident, but he had gone over the requirements and thought he might not have been aware of some aspects at the time. If his licence were to be restored, Mr Teal would make sure he goes through all necessary training and that he is aware of his obligations. 19. Expert evidence was given by Mr Michael Kruger-Davis, a registered psychologist, who at the hearing adopted his report dated 10 October 2018 (part exhibit A1). After setting out his qualifications and the circumstances leading to the making of the report, the assessment stated inter alia that he carried out a mental status examination and a global assessment of functioning on the applicant. The former showed him to be completely normal and fully in touch with reality, with no apparent disturbances of speech or thought. There was no indication of any underlying mental illness or personality disorder. On the latter test he scored very highly. He had no financial or health difficulties and his problem with his knees was being remedied by a recent operation. He is in a long-standing relationship and he and his partner share an interest in pistol shooting, competing and being members of the Campbelltown and Liverpool Pistol Club. He owns a successful business manufacturing roof trusses and house frames, employing approximately 80 people. He has stepped back from the day-to-day running of the company, but still retains control. He could not identify any major stressors in his life. He had never been diagnosed with any mental illnesses or personality disorders. 20. Mr Kruger-Davis said that as a sport, pistol shooting is excellent for older athletes, involving a range of technical and mental skills, such as goal setting, concentration, visualization, attention and relaxation. The mental activities associated with target sports are essential for maintaining health and executive functioning in senior years. The 2016 British Association for Shooting and Conservation report The Personal Value of Shooting: The Social, Personal and Physical Wellbeing Contribution of Shooting outlines the social and personal benefits of shooting sports. 21. The witness pointed out that his arrangements for compliance with the safe storage of firearms exceeded the mandatory requirements and included an elaborate and functional security system. Mr Jameson is of good character and standing within the community and has never been involved in criminal activity. He contacted police immediately on discovering the theft and accepted responsibility unreservedly. He had discharged his good behaviour bond. He had arranged for visual indicators in all levels of the house that would alert him if the garage door were open and not secure. This evidence was objected to by the respondent on the ground that it consisted of submission rather than objective expert assessment, but it was admitted on the basis that to the extent that it went beyond expert assessment it could receive little weight. 22. The witness said that the applicant is remorseful about the theft of his firearms and demonstrates an advanced level of empathy and acknowledging and accepting that his actions have caused firearms to fall into criminal hands. He is also remorseful because his actions have limited the recreational activity he enjoyed with his partner and is embarrassed that he made a decision based on expediency and convenience. He understands the gravity of his error of judgment and accepts full responsibility. 23. Having his firearms licence revoked would have an impact on his well-being. He enjoys the sport and doing it with his partner. The BASC report identifies the benefits of shooting sports. He is very unlikely to behave in a similar way again. It is more likely that he will be hyper-vigilant and obsessive about his and others' firearms security. 24. In oral evidence by telephone at the hearing the witness noted that the BASC report emphasized the benefits for older people, including exercise in the open air, the development of friendships, the ability to compete and practice and a reduction of anxiety and depression. The benefits would be the same in Australia. 25. He had examined the applicant on two occasions for about 1½ or two hours, or the equivalent of two sessions. Asked whether he thought the applicant had learned anything, in addition to expressing remorse and guilt, the witness said that part of the assessment consisted of evaluating affect and feelings, and the applicant had proved to be normal in that respect, and had intense feelings of remorse for having created an opportunity for theft and criminal use. He had since gone to greater lengths to improve security so that such an event could never happen again. 26. In cross-examination the witness said he had done several assessments of this nature but would not take on such a task if he felt he could not be objective. He holds a firearms licence and for a time was on the board of the clay target association, but not any more. He had been a principal psychologist for the Department of Education and now worked two days a week in that capacity as well as having a private practice. He agreed that he took into account matters that the applicant had told him, but added that most psychological assessment proceeds on that basis. 27. Mr Jameson had placed the gun case in the car because his gun safe was at ground level and he was suffering from knee problems and wanted to expedite their departure for the range the next day. The witness agreed that he had not asked many questions about why the applicant had done so, but pointed out that most of what we do is based on subconscious motives, for example when driving a car with manual transmission. People find it hard to explain why they did particular things and often do not know. Asking why they do things is not the basis of a psychological interview. He felt certain that the applicant would not do such a thing again given his understanding of the gravity of the lapse and his steps to improve security. He had learned from his mistakes, as we all do. He did not think his evaluation amounted to making a submission because his observations fitted in with the applicant's understanding of the offence and his exceeding of the safety requirements. Further, he is of good standing and immediately contacted police, accepting full responsibility. Those were clearly-defined facts, even though they do support his case. 28. The global assessment of functioning test is laid down in the Diagnostic and Statistical Manual as a way of ascertaining if a subject can function in normal society and is of sound mind. He would have administered other tests in addition if the question of mental health had formed part of the statement of reasons, but they did not. 29. The respondent called no oral evidence but relied on the s 58 documents (exhibit R1) and other documentary material. Respondent's submissions 1. The respondent relied on his written submissions filed on 7 January 2019 (part exhibit R2) in which he pointed out inter alia that the applicant had not locked his vehicle after loading the firearms into it on the evening in question, and his garage alarm was not activated at the time. Police investigations after the theft revealed that the firearms were being sold on the black market. 2. The submissions referred to Commissioner of Police v Toleafoa [1999] NSWADTAP 9, [25] in relation to the concept of the public interest. The Act does not give guidance in relation to how the discretion to revoke a licence should be exercised, but it should be exercised in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The "public interest" is been held to require that all licensees be aware of, and comply with, the legislative requirements: Cook v Commissioner of Police [2003] NSWADT 30. 3. Hennessy DP had provided a summary of the legal principles applying to the revocation of a firearms licence in Uzelac v Commissioner of Police [2003] NSWADT 226. Her Honour said in that case that the principal issue is whether there is a risk to public safety if the applicant retains a licence. Relevant considerations included: 1. the reason for failing to store the firearm safely; 2. the length of time the firearm was not stored safely; 3. the potential or real danger posed by the failure to store the firearm safely; 4. the person's previous conduct in relation to storage of firearms and any related matters; and 5. the person's understanding of the importance of safe storage and the likelihood that firearms will not be stored safely in the future. 1. Her Honour then added, "In relation to the first three considerations, if the breaches of the Act or Regulations are trivial or excusable, as distinct from fundamental, there is less likelihood of a risk to public safety". 2. The applicant had chosen convenience over compliance with the safe storage requirements and had also not ensured that his garage where his vehicle was stored was secured. His failure to store the five firearm safely resulted in a real and significant risk to public safety as three [now two] concealable firearms have not been recovered and may be held by an authorized person. The applicant's breach was not a minor or technical one but was of a fundamental nature. The storage facilities exceeded the minimum standard required by s 41 of the Act for Level 2 storage requirements, but the applicant did not use those facilities in a manner ensuring that the firearms were safely stored. His lapse in judgment on 24 November 2017 was significant and demonstrated that he had insufficient appreciation of the importance of safe storage. 3. The tribunal could not be confident that the applicant's firearms would be stored safely in the future or that there was "virtually no risk" to public safety. The decision-maker would need in effect to guarantee that a similar incident would not be repeated. While the applicant had not been convicted of any offence, his conduct that led to his being charged is relevant to the tribunal's assessment of his suitability to hold a licence on public interest grounds: Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31. All of the circumstances surrounding the offence must be taken into account: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218, [22]. 4. At the hearing the respondent reiterated those points and stressed that the objects of the legislation were clear. Sections 39 to 41 set out the safe keeping requirements and s 42 mandated that a police officer must seize any firearm or ammunition if there are reasonable grounds for believing it is not being kept in accordance with the legislative requirements. 5. It was not clear why the applicant had placed the firearms in the car the night before visiting the range, as the difficulties caused by his knee replacements would be the same on any day. The alarm system in the garage had not been operating at the time and the fact that two of the guns were now on the black market represented a danger to public safety. Further training would be meaningless, as the applicant already knew what his obligations were. Such an episode could occur again if he were to fail to secure his firearms appropriately. The guns had been in the car boot for between 12 and 15 hours, and the danger thereby presented had been crystallized. The applicant had no criminal convictions or other breaches of firearms protocol and it was probably unlikely that he would again store firearms in the boot of his car. Nevertheless, it was hard to be confident about that when it was not clear why he had done it in the first place. The tribunal could not be satisfied that there would be no repetition, as only about 14 months had elapsed since the offence. Consideration 1. Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act), the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, that the Commissioner's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77. 2. The tribunal has jurisdiction to exercise any functions conferred or imposed on it by the Civil and Administrative Tribunal Act 2013 (No. 2) (s 30) and the Act, including the Commissioner's revocation of a licence or permit: s 75(1)(c). The tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357. 3. The standard of proof that applies in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. There is, however, no burden or onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] – [34]. The civil standard applies even if the conduct in question may be criminal (Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449). 4. Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is "conditional on the overriding need to ensure public safety". 5. Section 24(2)(a) provides that a licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind, while s 24(2)(d) provides that a licence may be revoked for any other reason prescribed by the regulations. Clause 20 of the Firearms Regulation 2017 provides that the Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence. Under s 24(2)(b)(ii), the Commissioner also has a discretion to revoke a licence if the licensee "contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention". In the present case the respondent relies on that provision, as well as s 24(2)(d) and cl 20. 6. The phrase "public interest" is not defined in the Firearms Act. In O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, [13], the High Court held that the "public interest" imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police, New South Wales Police Service v Toloeafoa [1999] NSWADTAP 9, [25], which dealt with the revocation of a security licence, the Appeal Panel described the public interest ground in the relevant Act in the following terms: [A]n inherently broad concept giving the [Commissioner] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal. 1. The concept does include standards acknowledged to be for "the good order of society and for the well-being of its members": Director of Public Prosecutions v Smith [1991] Vic Rep 6; (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, 681, the High Court said: 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. The issue of public interest allows for matters going beyond the applicant's character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16, [33]. In the present context, and given the objects of the Firearms Act as explicitly and emphatically stated in s 3(1), the primary consideration in relation to the public interest must be public safety. 2. As was noted above, the Commissioner's (and by derivation this tribunal's) revocation power is a discretionary one. In Lynch v Commissioner of Police, New South Wales Police (GD) [2006] NSWADTAP 43, [37] the ADT Appeal Panel noted that "No guidance is given in the provision [s 24(2)(b)(ii)] as to what factors might be relevant [to the exercise of the discretion]. Without seeking to be exhaustive, relevant factors would, we think, include the gravity of the contraventions, any history of contraventions, mitigating circumstances and general public policy considerations". 3. As in the present case, the applicant had not been convicted of an offence, but that did not preclude revocation. As the Appeal Panel said in Lynch, "That Mr Lynch escaped a criminal conviction does not mean that he should therefore automatically escape an administrative sanction against his licence": at [47]. His proven offences were both serious and numerous. They included having six unsecured firearms, three of them loaded and three unregistered. He also had a large quantity of unsecured ammunition. The Appeal Panel affirmed the revocation decision, but in view of the remedial steps he had taken and his obvious contrition, indicated that he might be granted a licence again in the future. 4. In the present case, it is not disputed that on 24 November 2017 the applicant placed five firearms in the boot of his car (four of them in a locked metal case) the day before he intended to use them. There was also a quantity of unsecured ammunition. At the time this was done, the garage door was locked. It appears that at some stage during the evening, the applicant sat on his remote, which he kept in his back pocket, resulting in the activation of the garage door to the open position. That position allowed the thief to enter the garage and steal the firearms in the locked metal box in the car boot. No ammunition was taken. 5. The applicant notified the police as soon as he realized the loss and accepted full responsibility. At the request of police he downloaded the footage from his CCTV cameras, thereby assisting the apprehension of the the thief and the recovery of three of the guns. He pleaded guilty at the first opportunity. Although three of the stolen handguns were recovered, two are still unaccounted for. 6. On 30 January 2018, Wollongong Local Court found an offence under s 39 of the Firearms Act of failure to keep a firearm safety established against him. The court did not record a conviction or impose a penalty but required him to enter into a six months good behaviour bond under s 10 of the Crimes (Sentencing Procedure) Act 1994, which he completed without incident. He has no criminal convictions and his good character is not in doubt. His safe storage facilities exceeded the minimum standards required by the legislation for Level 2 and have been further strengthened since the date of the offence. 7. The applicant's contraventions were neither trivial nor purely technical. The tribunal has held that breaches of the statutory safe storage requirements are of a fundamental character in that they go to the crux of the principles and objectives of the Act: Bevan, [26]. In this case the risk to public safety that they created has "crystallized", as Mr Zoppo put it, in that two of the handguns have not been recovered and have, the respondent presumes, been placed on the handgun black market where they may be acquired for criminal purposes or by unauthorized persons. 8. Safe storage contraventions do not, however, automatically lead to licence revocation. In Bevan itself, the tribunal set aside the Commissioner's decision to revoke. In Yaghi v Commissioner of Police, New South Wales Police Service [2001] NSWADT 91 there was a conviction, not merely a finding of guilt, in respect of a safe storage infringement, which was affirmed on appeal. The tribunal nevertheless allowed the applicant to retain his licence, saying "As the Parliament has not chosen to make mandatory the power to revoke the licence in circumstances such as Mr Yaghi's, but rather has provided the Commissioner with a discretionary power, it is reasonable to conclude that not all contraventions or breaches warrant the exercise of the power to revoke. There must be something more to be taken into account": at [32]. 9. In Uzelac, another case in which a licence revocation decision was set aside, Acting President Hennessy DP set out the principles applying to licence revocations, particularly involving safe storage breaches, in a passage that has been widely approved and followed: 19 The legal principles which apply to the revocation of a firearms licence have been set out in previous decisions of this Tribunal. In summary, the following principles can be extracted: · while there is no onus of proof on either party, for the Tribunal to set aside a revocation decision based on failure to store firearms safely an applicant must show that there are persuasive and relevant considerations that take their matter outside the ordinary case. (Phegan -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 127; Hart -v- Commissioner of Police, New South Wales Police Service [2003] NSW ADT 114 [51] to [54]); · the principal issue is whether there is a risk to the safety of the public if the applicant retains the licence. (Vella -v- Commissioner of Police, NSW Police Service [2003] NSWADT 91 at [35]). Relevant considerations include: · the reason for failing to store the firearm safely; · the length of time the firearm was not stored safely; · the potential or real danger posed by failure to store the firearm safely; · the person's previous conduct in relation to storage of firearms and any related matter; · the person's understanding of the importance of safe storage and the likelihood that firearms will not be stored safely in the future; and · the reason the person has a firearms licence, keeping in mind that firearms possession and use is a privilege that is conditional on the overriding need to ensure public safety. (Moody -v- Commissioner of Police, New South Wales Police [2002] NSWADT 146 at [25]) · in relation to the first three considerations, if the breaches of the Act or regulations are trivial or excusable, as distinct from fundamental, there is less likelihood of a risk to public safety (Cusumano -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 50 · the discretion to revoke a licence must be exercised keeping in mind the nature of the conduct and the principles and objects of the Act; (Yaghi -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 91 at [37]. 1. It is convenient to apply the Uzelac considerations to the facts of the present case, seriatim. First is the reason for failing to store the firearm safely. Mr Jameson was finding it difficult to remove the firearms from his gun safe and place them in the boot of his car because two unsuccessful knee replacements made it awkward and painful for him to bend down or kneel. He therefore thought that he would save time when they were departing for the range the following day by loading them in the car the evening before and believed the guns would be safe as they were at home and in a locked garage. That was not a good reason, partly because, as Mr Zoppo pointed out, the applicant would have faced the same difficulties on any day, and also because it meant the firearms would not be properly secured for a considerable period of time. 2. Next, the length of time the firearms were not stored safely was between 12 and 15 hours, a considerable time which in the event proved more than enough to enable a thief to enter the garage, search all the cars and make off with the locked metal box containing the guns. 3. The potential or real danger posed by failure to store the firearms safely during that period was the risk that they could be stolen, especially if the garage door were to activate and thereby give access to the vehicles, as did in fact happen. Once stolen, and as the respondent pointed out there is a black market in handguns, they could come into the hands of wrongdoers who might use them for criminal purposes, or of other unauthorized persons. Fortunately, three of the guns were recovered and there is no evidence that the remaining two have been used in the commission of a crime. 4. The next factor is the person's previous conduct in relation to storage of firearms and any related matter. Here the applicant's record is a good one. Not only did his storage arrangements pass an earlier police inspection, but the responsible officers noted that the resulting security was of a higher standard than that required by the legislation. Ms Broadhead emphasized that the applicant had always taken his responsibilities regarding proper use and storage very seriously, and they had taken care of it as a joint exercise. He even had an alarm system installed in the room where his gun safe is located. She thought the incident in this case was greatly out of character given how seriously he took his responsibilities. Mr Teal, captain of the Campbelltown/Liverpool pistol club, stated that he had found the applicant to be vigilant in the security and safe keeping of his firearms at all times, to, from and at the club premises. He thought that the error in judgment on 24 November was an absolutely unrepeatable act. 5. Next is the person's understanding of the importance of safe storage and the likelihood that firearms would not be stored safely in the future. This is obviously a key factor in this case. Mr Zoppo submitted that while one can never categorically predict a person's future conduct, there was no reason to suppose that the applicant would not commit a similar offence in the future. 6. The evidence on this point includes Mr Teal's account of being in close contact with the applicant since the incident and having discussed and confirmed that he is knowledgeable on all the current safe keeping requirements. After many hours of conversations with him, Mr Teal understands that he is disappointed in himself. He had never denied his responsibility for the security lapse and was deeply remorseful about it. Mr Teal was categorically of the view that there would be no repetition of such a lapse. 7. Ms Broadhead testified that the applicant was "devastated" by having committed a stupid act that might result in someone being hurt. He kept bringing it up in conversation even today. The event had affected his understanding of the safe storage requirements and he had undertaken another relevant course. He would never do such a thing again. Given her relationship with the applicant, one might, with all due respect, surmise that her evidence might be more favourable to Mr Jameson than the circumstances might warrant, but her testimony is corroborated by the evidence of Mr Teal, who also stressed that the applicant immediately contacted police, accepted responsibility for the lapse and did everything he could to assist police to apprehend the thief. He said in oral evidence that the applicant is very sincere and "a pillar of the community". 8. The expert report by the psychologist Mr Michael Kruger-Davis also supports that assessment, adding that the applicant is of good character and standing within the community, has never been involved in criminal activity and has made further improvements in his household security system involving a back to base alarm and visual indicators in all levels of the house that would alert him if the garage door were open and not secure. He felt intense remorse over having created an opportunity for the theft and criminal use of his guns. The report concludes that "Mr Jameson is very unlikely to behave in a similar way again. It is more likely that he will be hyper-vigilant and obsessive about his and others' firearm security". 9. The next Uzelac factor is the applicant's reason for holding a licence. The applicant's reason was that he was no longer able to engage in the active sports in which he participated when he was younger and had sought a challenging activity in which both he and his partner could take part. He and Ms Broadhead decided to try pistol shooting and found that they both greatly enjoyed it. They appreciated the companionship and the challenges involved, as well as the way they could share the activity and discuss their experiences afterwards. 10. Mr Kruger-Davies referred to the 2016 BASC report on the personal value of shooting sports. He said pistol shooting is excellent for older athletes, as it does not require agility, strength or endurance but does involve a range of technical and mental skills, such as goal setting, concentration, visualization, attention and relaxation. The mental activities associated with target sports, the report stated, are essential for maintaining health and executive functioning in senior years. Having his firearms licence revoked would thus have an impact on the applicant's well-being. 11. In all, the applicant's reasons for having a licence are respectable and constructive, although perhaps not on quite the same level as a farmer's need for long arms or a cash-carrying security company's requirement for handguns. 12. The final Uzelac consideration mentioned by Hennessy DP was that "In relation to the first three considerations, if the breaches of the Act or Regulations are trivial or excusable, as distinct from fundamental, there is less likelihood of a risk to public safety". The applicant's lapse, however, was far from trivial and may be difficult to excuse given that he took a potentially risky shortcut purely for reasons of comfort or convenience. Previous malfunctions of the garage door remote control should have alerted him to the need for precautions in that regard. In Uzelac Hennessy DP prefaced her remarks by saying that for the tribunal to set aside a decision revoking a licence based on failure to store firearms safely, the applicant needed to show persuasive and relevant circumstances that take the matter outside the ordinary case. 13. While the applicant's contravention was a serious one, I find that he has shown persuasive and relevant circumstances that take his matter outside the ordinary case. They include: * his unblemished prior record in relation to firearms and the general law; * his high reputation and standing in the community and in pistol shooting circles; * his security precautions before the offence exceeding those required by law; * his contacting the police immediately on becoming aware of the theft, accepting full responsibility and assisting the police by supplying his CCTV footage enabling the wrongdoer's apprehension and recovery of three of the guns; * his acute remorse and contrition over the event, attested to by all witnesses, together with the sobering experience of being deprived of his licence and unable to engage in his favourite sport for over a year, which will have reinforced the lessons involved; * his upgrading of the already strong security precautions at his house; and * the psychological evidence concluding that in the future he is likely to be hyper-vigilant and obsessive over firearm security precautions and is highly unlikely to reoffend. He suffers from no mental disorder and functions fully appropriately in normal society. 1. I therefore find that there is virtually no risk that Mr Jameson will in the future fail to follow prescribed safe storage or other safety requirements and that it is not contrary to the public interest for him to hold a category ABH firearms licence. Orders 1. Decision under review set aside. 2. The applicant's category ABH firearms licence is to be restored to him. *********** 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: 07 February 2019