Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Warner v Commissioner of Police, NSW Police Force [2019] NSWCATAD 146 Hearing dates: 26 March 2019; 27 March 2019 Date of orders: 26 July 2019 Decision date: 26 July 2019 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery, Senior Member Decision: The decision under review is affirmed. Catchwords: Administrative Law – licensing – firearms – revocation of licence – fit and proper person – public interest. Legislation Cited: Civil and Administrative Tribunal Act 2013 Administrative Decisions Review Act 1997 Firearms Act 1996 Mental Health (Forensic Provisions) Act 1990 Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Director of Public Prosecutions v Smith (1991) 1 VR 63 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 Kocic v Commissioner of Police NSW Police Force [2014] NSWCA 368 McDonald v Director-General of Social Security (1984) 1 FCR 354 Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 Texts Cited: Nil Category: Principal judgment Parties: Barry James Warner (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Counsel: W Wilcher (Applicant) Z Heger (Respondent) Solicitors: S Munslow (Applicant) Crown Solicitor (Respondent) File Number(s): 2018/00175221 Publication restriction: Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013, the material that was lodged by the Respondent on a confidential basis is not to be released without further order of the Tribunal. Reasons for Decision Introduction 1. This is an application by Mr Barry Warner ("the Applicant") seeking review of a decision by the Commissioner for Police ("the Commissioner" or "the Respondent") to revoke the Category AB Firearms Licence ("the licence") that the Applicant held under the Firearms Act 1996 ("the Act"). 2. The decision to revoke the licence was made on the basis that it was not in the public interest for the Applicant to continue to hold the licence. That decision was affirmed on internal review. Background 1. The background to this matter is not in dispute. The Applicant is a farmer. He and his wife, Mrs Catherine Warner ("Catherine") own a property near Tamworth. A dispute arose between the Applicant and his neighbour, Mr Bradley Dunn ("Bradley"), regarding the assistance that the Warners had been providing to Mr Dunn's ex-wife, Ms Fiona Dunn ("Fiona"). At the time, Bradley and Fiona had separated and a property settlement had not been reached. Fiona had stored property on the Warners' property and Bradley claimed that some of the property belonged to him. The Applicant believed that there was an AVO which prevented Bradley from entering the Dunns' property at the time. 2. Prior to that dispute the Applicant and Bradley had a cooperative neighbourly relationship and had worked together on joint projects. Bradley had stored tractors and hay making plant on the Warners' property. However, the Applicant subsequently returned that equipment to the Dunns' property. The Warners provided Fiona with both moral and financial support and assistance in running her farm. When Bradley found out that the equipment had been returned to the Dunns' property he sent the Applicant a text saying that 'you have destroyed my livelihood because now I cannot access my farming plant I'll get you for that'. 3. The Applicant was stressed about a number of issues at the time. He was very concerned about Catherine's health as she was being treated for stage 4 cancer. He was also concerned about his own health as he had found out the he has a genetic disposition to a condition that could result in a sudden cardiac event. His brother had recently passed away from that condition. He was also distressed at the way he perceived that Fiona was being treated. 4. On 26 February 2017, Bradley's brother, Mr Justin Dunn ("Justin"), attended the Warners' property to discuss resolution of issue regarding the Dunn's property. Justin and the Applicant argued and an incident occurred that resulted in charges being brought against the Applicant. The account of the incident between the Applicant and Justin ("the February 2017 incident") is included in the Statement of Agreed Facts which was tendered in the criminal proceedings. The Statement of Agreed Facts is in evidence in these proceedings. 5. The Applicant interpreted comments made by Justin as an accusation of theft and comments regarding the Applicant's cattle as a threat to release and not return them. In retaliation the Applicant then made the following threats directed at Bradley: "I will break his hands, he will never work again and he will end up in a wheel chair for the rest of his life". The Applicant also said: "I'll use his belt buckles as target practice". 6. During the course of the conversation, the Applicant's son, Mr Ashley Warner ("Ashley"), approached the Applicant and Justin. The Applicant said to Ashley: "Go and get the shotgun". Ashley did not respond and Justin left soon thereafter. 7. The Applicant was charged with stalking or intimidating with intent to cause fear of physical or mental harm under section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007. 8. A registered psychiatric nurse and clinical nurse consultant in forensic mental health, Ms Lesley Douglas, diagnosed the Applicant as having symptoms consistent with a diagnosis of Major Depressive Disorder and Adjustment Disorder and that he was suffering from severe disturbance of mood, namely a depressed mood of a duration that exceeds four weeks. 9. At the hearing in August 2017 the presiding Magistrate, Magistrate Prowse, found that the Applicant was "suffering from a mental condition for which treatment is available in a mental health facility" and determined that the offence would be dealt with under the Mental Health (Forensic Provisions) Act 1990. 10. The charges were dismissed under section 32(3) of that Act and the Applicant was discharged on condition that he complied with a treatment plan. 11. In February 2018 a delegate of the Commissioner issued a Notice of Revocation under section 24(2)(d) of the Act and clause 20 of the Firearms Regulation 2017 ("the Regulation") on the basis that it was not in the public interest for the Applicant to continue to hold the licence. 12. The decision to revoke the Applicant's licence was affirmed on internal review. The Applicant has sought external review in the Tribunal. Applicable legislation 1. Section 11 of the Act provides: 11 General Restrictions On Issue Of Licences (1) The Commissioner may issue a licence in respect of an application, or refuse any such application. ... (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. ... 1. Section 24 of the Act provides: 24 Revocation of licence ... (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 … (c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or … (d) for any other reason prescribed by the regulations. ... 1. Clause 20 of the Regulation provides: 20 Revocation of licence—licence not in the public interest 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. 1. Section 32 of the Mental Health (Forensic Provisions) Act 1990 provides: 32 Persons suffering from mental illness or condition or cognitive impairment (1) If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate: (a) that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate): (i) cognitively impaired, or (ii) suffering from mental illness, or (iii) suffering from a mental condition for which treatment is available in a mental health facility, but is not a mentally ill person, and (b) that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law, the Magistrate may take the action set out in subsection (2) or (3). (2) The Magistrate may do any one or more of the following: (a) adjourn the proceedings, (b) grant the defendant bail in accordance with the Bail Act 2013, (c) make any other order that the Magistrate considers appropriate. (3) The Magistrate may make an order dismissing the charge and discharge the defendant: (a) into the care of a responsible person, unconditionally or subject to conditions, or (b) on the condition that the defendant attend on a person or at a place specified by the Magistrate: (i) for assessment or treatment (or both) of the defendant's mental condition or cognitive impairment, or (ii) to enable the provision of support in relation to the defendant's cognitive impairment, or (c) unconditionally. (3A) If a Magistrate suspects that a defendant subject to an order under subsection (3) may have failed to comply with a condition under that subsection, the Magistrate may, within 6 months of the order being made, call on the defendant to appear before the Magistrate. (3B) If the defendant fails to appear, the Magistrate may: (a) issue a warrant for the defendant's arrest, or (b) authorise an authorised officer within the meaning of the Criminal Procedure Act 1986 to issue a warrant for the defendant's arrest. (3C) If, however, at the time the Magistrate proposes to call on a defendant referred to in subsection (3A) to appear before the Magistrate, the Magistrate is satisfied that the location of the defendant is unknown, the Magistrate may immediately: (a) issue a warrant for the defendant's arrest, or (b) authorise an authorised officer within the meaning of the Criminal Procedure Act 1986 to issue a warrant for the defendant's arrest. (3D) If a Magistrate discharges a defendant subject to a condition under subsection (3), and the defendant fails to comply with the condition within 6 months of the discharge, the Magistrate may deal with the charge as if the defendant had not been discharged. (4) A decision under this section to dismiss charges against a defendant does not constitute a finding that the charges against the defendant are proven or otherwise. (4A) A Magistrate is to state the reasons for making a decision as to whether or not a defendant should be dealt with under subsection (2) or (3). (4B) A failure to comply with subsection (4A) does not invalidate any decision of a Magistrate under this section. (5) The regulations may prescribe the form of an order under this section. (6) In this section: cognitive impairment means ongoing impairment of a person's comprehension, reasoning, adaptive functioning, judgment, learning or memory that materially affects the person's ability to function in daily life and is the result of damage to, or dysfunction, developmental delay or deterioration of, the person's brain or mind, and includes (without limitation) any of the following: (a) intellectual disability, (b) borderline intellectual functioning, (c) dementia, (d) acquired brain injury, (e) drug or alcohol related brain damage, including foetal alcohol spectrum disorder, (f) autism spectrum disorder. Role of the Tribunal 1. Section 9 of the Administrative Decisions Review Act 1997 provides that the Tribunal has jurisdiction in regard to an application for review of a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review. In this matter, the Tribunal's jurisdiction is conferred under section 75(1)(c) of the Act. 2. The Tribunal's role is to decide whether, having regard to the underlying facts in the matter and the applicable law, the decision is the correct and preferable one: section 63 of the Administrative Decisions Review Act 1997. 3. Neither party bears an onus of proof. The hearing is a hearing "de novo" – meaning that the Tribunal may consider the matter from the start including taking into account fresh evidence brought before the Tribunal. The Tribunal is not restricted to the consideration of the material that was before the Respondent, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. 4. The Tribunal must make its own decision. There is no presumption that the decision under review is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354. The issue for determination 1. The issue for determination is whether the decision to revoke the Applicant's firearms licence is the correct and preferable one. This will require the Tribunal to consider whether or not: 1. the Applicant is a fit and proper person to hold a licence; and 2. it is contrary to the public interest for the Applicant to hold a licence. Fit and proper person 1. One of the issues for determination is whether the Applicant is a fit and proper person to hold a licence under the Act. Relevant to the assessment of an applicant's fitness and propriety is whether the applicant understands the duties and responsibilities of a licence holder, acts in accordance with those duties and responsibilities, and has sufficient moral integrity and character so as to be entrusted with possessing and handling firearms 2. A person's fitness and propriety are to be determined by reference to the activities in issue and consideration of the nature and purpose of the activities that the person will undertake. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said: 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 the person who is or 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, whether it can be assumed that it will not 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 likely 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 fit and proper to undertake the activities in question. 1. They went on to say at 388: The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration. 1. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said: In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails. 1. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 the High Court discussed the meaning of the term 'fit and proper' (at 156-7): "The expression `fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. `Fit' (or `idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances." The Public Interest 1. The Tribunal has considered the concept of 'the public interest' in a number of decisions. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated in regard to a decision to refuse to issue a security industry licence: "25 The " public interest " is an inherently broad concept giving the appellant the ability to have regard to a wide range 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. "Public interest' embraces standards acknowledged to be 'for the good order of society and for the wellbeing of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. The purpose of a reference in legislation to 'the 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 decision-maker's consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at page 681. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals. 2. In Kocic v Commissioner of Police NSW Police Force [2014] NSWCA 368, where the issue was whether the Tribunal was entitled to take into account spent convictions in circumstances where the primary decision maker was expressly prohibited from doing so, Basten JA held at paragraph [41] that no "bright line" can be drawn between the factors relevant to the public interest consideration in section 11(7) of the Act and those addressed under other subsections, including the "fit and proper" criterion in section 11(3)(a). There may be characteristics of the applicant which might not lead to refusal under those other provisions, but which would nevertheless permit refusal under section 11(7), an example being where some weight might be given to spent firearm convictions including with respect to the credibility of the applicant. Leeming JA held (at paragraph [92]) that forming a view that the issue of a licence is "contrary to the public interest" is a very different concept to character or fitness under section 11(7). White J held: 106. …The matters that can be taken into account in making an assessment of the public interest pursuant to s 11(7) are not limited to matters not otherwise dealt with by s 11(3). Such considerations may include an applicant's fitness or character if that is relevant to an assessment of the public interest (as it would usually be), notwithstanding that an applicant's fitness or character is a separate matter to be considered under s 11(3)(a) and notwithstanding that in applying s 11(3)(a) the Commissioner cannot have regard to the spent convictions or the conduct underlying them. 1. The discretion must be exercised keeping in mind the activities which are authorised by a licence under the Act. Accordingly, the objects and purposes of the Act are relevant. The underlying principles of the Act include confirmation that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety. The Evidence 1. The Respondent relies on the material that was taken into account in determining to revoke the licence. It also relies on the material that was before the court in the criminal proceedings, including the statement of agreed facts; a report from Clinical Nurse Consultant Ms Douglas; and the statements of Bradley and Justin. Ms Heger provided both written and oral submissions. 2. The Respondent also provided some evidence and submissions on a confidential basis. That material has not been given to the Applicant. I have considered that material however my decision in this matter is made on the basis of the open material. 3. The Applicant relies on his own evidence and that of Catherine, Ashley and Fiona. The Applicant and Catherine were both cross-examined. References in the form of affidavits were provided by Mark Byrnes, Christopher Simon and Craig Edwards who speak positively about the Applicant. 4. The Applicant also provided medical reports by Dr Christopher Gittoes, his treating General Practitioner; Dr Terrance Lim, a consultant psychiatrist; and Mr Paul Riley, his treating psychologist. Each attended and was cross-examined. The Applicant 1. The Applicant provided affidavit evidence and was cross-examined. 2. The Applicant is a farmer in the Tamworth area however he spends much of his time working away from home. He has held a firearms licence for over thirty years without any other incident involving violence, the threat of violence or misuse. His reason for requiring a licence is primary production - primarily for the control of feral animals. He has no criminal record other than that relating to the February 2017 incident that resulted in charges against him and ultimately in the revocation of his licence. 3. At the time of the February 2017 incident the Applicant was affected by a number of stressors. His brother had recently died and Catherine had been diagnosed with stage 4 cancer. He had also had considerable conflict with Bradley. He had not been diagnosed or received treatment for depression. 4. The condition that caused the sudden death of his brother was a congenital heart condition that had also killed another brother. The Applicant suffers from the same condition and it may kill him at any time. 5. Catherine has been being treated for cancer for the last five years and suffers side-effects associated with her treatment. She has recently been advised that there is some improvement in her condition but the treatment is on-going. 6. The Applicant provided background information about the events that led up to the February 2017 incident. He does not dispute that he made the comments that were attributed to him. However, he says that the comments were not intended to be taken as threats. He described them as 'pub talk'. They were not intended to be taken seriously and there was no direct threat made to shoot Bradley. The comment about using Bradley's belt buckle for target practice was not intended to suggest that he intended to shoot the buckle whilst Bradley was wearing it. He denied that he has ever threatened to shoot Bradley or any other person. 7. The Applicant noted that Bradley did not raise the matter with Police until sometime later when they attended his property to confiscate his firearms following a domestic incident with Fiona. He said that this suggests that Bradley had not taken the threat seriously prior to that time. Similarly, Justin did not report the matter to Police until about the same time. 8. The Applicant stated that he was "rather annoyed" at threats made by Justin and that being accused of theft repulsed him as he is "a man of good values". 9. He does not accept that there is a need for any further psychological assistance. He said that he followed the directions that he had been given by the court but did not think he needed help. He said that he is able to talk with friends and people who are able to give him advice. He queried whether anyone else is in a position to tell him that he needs help. However, he said that if the need arose in the future he might seek help. He would accept whatever medical advice he was given. 10. He accepts that he was under significant stress at the time of the February 2017 incident but maintained that this has now been addressed. He has come to terms with the knowledge that his congenital heart condition may kill him at any time and it no longer concerns him. He had previously been concerned about their financial circumstances but he now has a financial plan in place. He also accepts that Catherine has a terminal illness. He has taken advice in regard to his dispute with Bradley. He has not seen Fiona for several years and does not deal with Bradley directly. If a need arises, he will communicate with Bradley either through his solicitor or through the police. Lesley Douglas 1. Ms Douglas is a psychiatric nurse and clinical nurse consultant in forensic mental health. She conducted a psychiatric assessment of the Applicant and provided a medico-legal forensic psychiatric report in relation to the criminal proceedings. 2. Ms Douglas noted that Dr Gittoes had diagnosed the Applicant with "depression and marked psychological distress secondary to the trauma of his recent brothers' death, the loss of his father and his wife's terminal illness." A mental health plan was devised and the Applicant was referred to receive cognitive behavioural therapy through Calm Consultants. He saw Ms Amanda Jeffrey through Calm Consultants but did not feel comfortable with that arrangement. He was advised to obtain a further referral to see Mr Paul Riley from ProActive Health. 3. Ms Douglas noted that the Applicant presented "with symptoms of complicated grief. He has not managed to accept the death of his father and his wife's battle with cancer." She stated that he "meets the diagnostic criteria for both Major Depressive Disorder and Adjustment Disorder, where his response to the stressor (his wife's terminal illness) is prolonged and unresolved and he exhibits ongoing emotional and behavioural symptoms in response to his identifiable stressor". She noted that he exhibited very little insight into the trauma that the stressor is causing him and he did not recognise that his emotional liability was based on his under-developed resolution mechanisms. 4. The Diagnostic and Statistical Manual of Mental Disorders DSM-5 is a diagnostic tool that is used in diagnosis of Depressive Disorder and Adjustment Disorder. Ms Douglas concluded that the Applicant presented with "symptoms consistent with a diagnosis of Major Depressive Disorder and Adjustment Disorder as described in DSM-5. … He suffers from severe disturbance of mood, namely a depressed mood of a duration that exceeds four weeks." He "suffers from major depressive disorder. Symptoms of this disorder can include impulsivity. Should this disorder and associated impulsivity symptoms be effectively treated, then it lends itself to the hypothesis that future offending could be reduced." Catherine Warner 1. Catherine has been married to the Applicant for thirty-six years and has been able to observe his behaviour. She has been a nurse for forty-two years. As a psychiatric nurse she has carried out assessments in the Department of Justice of people in the custodial and judicial system. She has occupied the position that Lesley Douglas once occupied. Catherine's evidence is that the Applicant is not depressed, but that he is subject to anxiety. She stated that he has developed strategies to deal with the types of issues and stressful situations that might have previously caused him to react inappropriately. She does not consider that he is a threat to anyone. Dr Christopher Gittoes 1. Dr Gittoes has been the Applicant's General Practitioner since 2016 however has known the Applicant for a much longer period. He has been involved in the Applicant's treatment pursuant to the Magistrate Prowse's order. His report dated 2 June 2018 was prepared for these proceedings. 2. He noted that the Applicant consulted him in April 2017 due to moderate anxiety. This condition related to: 1. the sudden death of his brother in August 2016; 2. Catherine's ongoing treatment for cancer and the debilitation associated with her treatment; and 3. the conflict with Bradley. 1. At the consultation Dr Gittoes assessed the Applicant as not being a threat to either himself or to others. He referred the Applicant to a psychologist for assistance with the anxiety around these issues. 2. Dr Gittoes noted that when he saw the Applicant in June 2018 mention was made of the fact that the ongoing issues/legal dispute were continuing to cause him mild anxiety/depression. He was prescribed medication for mild anxiety and depression. Following a further consultation in August 2017 the Applicant was referred to another psychologist, Mr Riley, regarding these issues. 3. Dr Gittoes again assessed the Applicant at a consultation in April 2018. A K10 analysis (a psychological assessment tool for measuring degree of anxiety /depression) was performed and the result was a K10 score of 13/50. This score indicates virtually no anxiety/depression at this time. Dr Gittoes noted that the Applicant's anti-depressant/antianxiety medication had been ceased some weeks before this assessment. 4. Dr Gittoes concluded: At no time during the course of Mr Warner's consultations with me have I had any reason to consider him a threat to himself or others and I therefore have no hesitation in supporting his appeal to have his firearms licence reinstated. 1. Under cross-examination Dr Gittoes said that he did not recall being aware of the statements attributed to the Applicant as having been made during the February 2017 incident. After reading the Applicant's evidence he stated that the evidence suggests that the Applicant had made threats but had not used a firearm irresponsibly. He said that the additional information would not alter his opinion. He said that he does not think that the Applicant is a threat to anyone. 2. Dr Gittoes accepted that the knowledge that he was at risk of a heart attack at any time would be worrying but different people respond differently and he did not know how the Applicant had responded to that knowledge. 3. Dr Gittoes also conceded that if Catherine's condition deteriorated it could trigger reactive depression. He thought that the Applicant would probably reach out for help in those circumstances. Dr Terrance Lim 1. Dr Lim prepared his report following an appointment with the Applicant in July 2018. 2. Dr Lim noted that the Applicant had a very strident and rigid sense of right and wrong and that he had felt a strong sense of duty to come to Fiona's aid because he felt that Bradley was treating her being poorly. He stated that the Applicant admitted to threatening Bradley with harm, described as a threat to: "give him a flogging", "break his hands", "put him in a wheelchair permanently", and to "use his belt buckle (a prize won in a cattle roping competition) as target practice." 1. Dr Lim stated that the Applicant admitted to feelings of anger towards Bradley but strongly denies that he ever harboured a wish to actually shoot Bradley. He regrets his verbal threats and recognises they were inappropriate and were not productive ways to communicating his anger. He has undertaken to avoid all contact with Bradley 2. The Applicant also denied symptoms of melancholic depression, but did describe feelings of sadness associated with the recent death of his brother and Catherine's illness. On the DASS 21 clinical assessment that measures the three related states of depression, anxiety and stress the Applicant scored 5 (mild) on depressive domains, 0 on anxiety domains, and 6 (normal) on stress domains of symptoms. 3. Dr Lim stated that Catherine attended the appointment with the Applicant and she vouched for his lack of previous mental illness. They both indicated that the Applicant has been quite stressed and anxious since losing his guns, because it prevents him from managing his farm effectively. Catherine reported that the Applicant's personality is characterised by rigid and strong moral beliefs, and he is a person who is fixed in his habits and world views. He is however, by nature a very altruistic and generous individual who has never had an episode of physical violence. 4. In summary Dr Lim stated that the Applicant presented with anxiety and depression in the context of becoming involved in an acrimonious separation of his neighbours, as well as other psychosocial stressors that were in his life. These included the death of his brother as well as Catherine's illness. He does not have symptoms of melancholia or a psychosis. Adding to his distressed has been the removal of his firearms. 5. Dr Lim stated that the Applicant has a personality style that could be described as highly moralistic as well as morally rigid. Whilst not a mental illness, his strong sense of right and wrong has made it more difficult for him to deal with perceived wrong behaviour in other people. 6. In Dr Lim opinion the Applicant meets DSM 5 criteria for a chronic adjustment disorder in remission. He considers that the risk of the Applicant harming others or himself is minimal. The Applicant does not pose a quantifiable risk of harm to himself or others. 7. Under cross-examination Dr Lim conceded that the Applicant's instruction to Ashley to "go and get the shotgun" was a significant statement. He accepted that the statement could have been interpreted as a threat. He nevertheless did not agree that the Applicant intended to use the shotgun. He considered that uttering a threat is very different to carrying out the threat. 8. In Dr Lim opinion the Applicant's congenital heart condition was not a current stress factor. He said that the Applicant had not raised it as a significant factor and he could not recall whether he had raised it with the Applicant. He considered that the Applicant had accepted it as a characteristic. 9. Dr Lim accepted that Catherine's condition is likely to be an ongoing stressor. If her condition worsened it could be a factor in favour of relapse. In that circumstance he would need to consult with the Applicant again to see if he had developed strategies to cope. He agreed that the Applicant would benefit from ongoing treatment but he did not consider that this was related to his assessment of the risk associated with the Applicant's possession of firearms. 10. He stated that he would not change his assessment of the Applicant in light of the additional information that he had been given. Mr Paul Riley 1. Mr Riley is the Applicant's treating psychologist. He prepared a report dated 22 August 2018. 2. Mr Riley had six clinical treatment appointments with the Applicant beginning in September 2017 and concluding in July 2018. All appointments were of approximately one hour duration. The Applicant also completed a short assessment of mood state on 30 July 2018. He noted that the Applicant attended the sessions because of the court order and that he was not happy about that requirement. He agreed that the Applicant would probably not have attended if it had not been ordered by the court. 3. His work with the Applicant included cognitive behavioural therapy targeting frustration and anger management. They also focused on the Applicant's experience of grief relating to the loss of his brother, and more specifically on the anxiety and depressive symptoms related to Catherine's treatment for cancer. He said that the Applicant experienced a sense of hopelessness and of being helpless in assisting Catherine and this caused significant despondency in his life. He noted that Catherine will continue with treatment for cancer and the Applicant's stress levels will most likely escalate as he anticipates this loss. He said that the Applicant will be vulnerable to depression over this time. 4. Mr Riley considered that the Applicant's description of his mental state at the time of the February 2017 incident suggested that he met the criteria for Major Depressive Disorder as per the DSM-5. He was experiencing emotional lability and irritability consistent with such a diagnosis. He said that the Applicant's mental health status was improving as the treatment progressed. 5. Mr Riley stated that the Applicant's account of the February 2017 incident was entirely consistent with the Police brief that was supplied to him. In his opinion the Applicant's behaviour was not characteristic of his general demeanour or personality. 6. Mr Riley assessed the Applicant's psychological profile using a Personality Assessment Inventory (PAI). The PAI is a self-administered objective test of personality and psychopathology. Mr Riley stated that the Applicant's scores suggest that he responded inconsistently to a number of items with highly similar content. Therefore, the test results can only be assumed to be invalid. 7. Mr Riley assessed the Applicant's anger profile using the State-Trait Anger Expression Inventory–2 (STAXI-2). The State Anger Scale assesses the intensity of anger as an emotional state at a particular time. The Trait Anger Scale measures how often angry feelings are experienced over time. The Anger Expression and Anger Control Scales assess four relatively independent anger-related traits: expression of angry feelings toward other persons or objects in the environment, holding in or suppressing angry feelings, controlling angry feelings by preventing the expression of anger towards other persons or objects in the environment, and controlling suppressed angry feelings by calming down or cooling off. 8. The Applicant recorded a State Anger score in the low-moderate range. This generally reflects the fact that he reports little or no inclination to become aggressive. The Applicant's Trait Anger score fell in the moderate range. However, on one of the subscales, (T-Ang/T), his score fell in the high range. People who fall in the high range on this subscale tend to react in the form of anger when they perceive they are being treated unfairly. The Applicant's profile on this measure also indicated that he is prone to suppressing emotions related to anger. 9. Mr Riley assessed the Applicant's emotional states using the DASS-21. The DASS-21 is a self-report instrument designed to assess depression, anxiety and tension/stress. Emotional syndromes like depression and anxiety are dimensional in that they vary along a continuum of severity. The Applicant fell in the Normal range on the Depression scale with a score of 6. He fell in the Normal range on the Anxiety scale with a score of 2. He scored 8 on the Stress scale, also placing him in the Normal range. 10. Mr Riley concluded that the Applicant would meet criteria for both Major Depressive Disorder and Adjustment Disorder with Depressed Mood as per the DSM-5. He noted that the Applicant's expression of anger may be a symptom of both of those conditions. Nevertheless, he believes that the Applicant would continue to exercise responsible control over his firearms, despite the stress he has experienced over the last five years, and the continuing strain associated with Catherine's health condition. 11. Mr Riley recommended that the Applicant continue with psychological therapy to assist with managing grief and the demands of caring for Catherine. He stated that while the Applicant may be vulnerable to forming depression due to Catherine's deteriorating physical condition, he does not hold a view that these mental health challenges would lead the Applicant to be a danger to himself or others with the use of firearms. He does not have a propensity to use a firearm in a malicious way. 12. Under cross-examination Mr Riley agreed that even at the end of the treatment the Applicant still fell in the high range on the subscale indicating a tendency to react in the form of anger when he perceive he was being treated unfairly. He considered that the Applicant has this predisposition but it is under control and his outbursts are not representative of his character. 13. He said that he was not aware of the Applicant's genetic disposition to a condition that could result in a sudden cardiac event. He conceded that this would be an ongoing source of stress. He also conceded that Catherine's health condition would be an ongoing source of stress for the Applicant. He agreed that Catherine's condition would probably deteriorate and that the Applicant's stress levels would increase as her condition deteriorated. There was a risk of relapse into depression and the symptoms would be likely to increase if there was a relapse. He had recommended that the Applicant continue with his treatment. He agreed that he was not satisfied that the Applicant had sufficient strategies to cope on his own. He also agreed that the Applicant might not seek help that he needs. 14. In regard to his view that the Applicant would meet criteria for both Major Depressive Disorder and Adjustment Disorder Mr Riley stated that while the assessment scores indicated that he fell within the normal range, this was not consistent with his observations. Discussion 1. The central issue in this matter is the February 2017 incident and how it is to be characterised. The facts are not in dispute but there are several aspects to the February 2017 incident that need to be considered. The Applicant conceded that, in reference to Bradley, he made the statement: "If he touches his wife again I'll go down and bust his hands then he won't be able to work". 1. The agreed facts state that the Applicant made the statement: "I will break his hands, he will never work again and he will end up in a wheel chair for the rest of his life". 1. The Applicant also conceded that he said to Ashley: "get a shotgun because we are not having people snooping around our property at night your mum will be in fear for her life on her own here at night". 1. The agreed facts state that the Applicant made the statement: "Go and get the shotgun". 1. The agreed facts also state that the Applicant made admissions to these comments. It states that the Applicant made the statement: yeah I did say that because he was intimidating me. I just retaliated. He sent him up to call me a thief... If Bradley hadn't sent him up here to intimidate me none of this would have happened. 1. The Applicant denies that the threat of violence to Bradley was more than an empty threat. He described it as no more than "pub talk" and that he had no intention of carrying out the threat. I accept that evidence. It is consistent with the views expressed by Dr Lim that the Applicant is a very altruistic and generous individual who has never had an episode of physical violence. 2. The Applicant also denied that the instruction to Ashley was intended as a threat. I do not accept that there was no intention to threaten Justin. It was only when the issue was pressed that he accepted that he wanted to frighten Justin. The conversation with Justin took place sometime on the morning of 26 February 2017. In my view it is implausible that the Applicant would have given that instruction to Ashley if he was concerned about activity at night time. In my view it was intended to threaten Justin and to intimidate him. 3. It is probably that the Applicant took offence at comments that Justin had made and that he retaliated with his threats. The Applicant also denied that he was angry however that denial is consistent with the view expressed by Mr Riley that the Applicant would tend to react in the form of anger when he perceives that he is being treated unfairly. It is clear that the Applicant considered that he was not being treated fairly on that occasion. He had been accused of theft and threats were made about his cattle. Further, his reaction shows that he was quick to temper and overreacted to the situation. He reacted to Justin's comments with threats of physical violence. 4. I accept Dr Lim's opinion that the risk of the Applicant harming others or himself is minimal. In my view it is also probable that the Applicant would not have acted on his threat. I also accept that it is probable that the Applicant would exercise responsible control over his firearms. He does not have a propensity to use a firearm in a malicious way. Nevertheless, it is apparent from his evidence that he lacks insight in regard to the seriousness of his actions. 5. Notwithstanding that I accept that it was improbable that the Applicant would have acted on his threat, the fact that the threat was to use a firearm in retaliation to comments that Justin had made is a serious issue. In the criminal proceedings Magistrate Prowse observed: "certainly the intimidation matter if proven by the Crown and proven at the level set out in the agreed facts would clearly be a serious matter making a threat to shoot somebody or giving the impression that might be the case, an allegation that Mr Warner said 'Go and get the shotgun', the only time that anyone has ever said that to me I rang the police, so it is not an unusual reaction from the recipient of a comment like that and that clearly puts it in that higher categorisation …" 1. I agree with that view. 2. I have had the benefit of several medical reports which make it clear that the Applicant would probably not have acted on his threat. Justin did not have those reports and he would not have been in a position to know whether the Applicant would carry out his threats of violence. 3. Justin had apparently related the threats to Bradley and Bradley would not have been in a position to know whether the Applicant would carry out his threats. 4. The material before me suggests that both Justin and Bradley took the threats seriously. The fact that they did not report the February 2017 incident to Police until a few days later does not alter that position. 5. The essence of the Respondent's case is 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 do so. Any propensity towards offending against the law must be regarded as of crucial importance. Where there has been, or is, a possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm. The principle issue then is whether there is a risk to the safety of the public if the Applicant retains the licence. 6. The licensing regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. This approach is equally applicable to the issues that have been raised in this matter. That is, the Applicant's fitness and propriety and the public interest. 7. 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". In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration". 8. It is clear from the evidence that at the time of the February 2017 incident the Applicant had anger issues that were not managed. It is also clear from the medical evidence that he has made significant progress in addressing those issues. However, the evidence also suggests the Applicant would benefit from further psychological assistance. 9. Mr Riley has pointed out that the Applicant would tend to react in the form of anger when he perceives that he is being treated unfairly. The Applicant has pointed out that he now has strategies that would allow him to deal with such situations more appropriately. However, there is good reason to doubt that that would be the case. He does not appear to have insight in regard to the significance of his actions. His threats of violence were serious and disproportionate to the threats that Justin made to him. The seriousness of his conduct is not diminished by that fact that he would not have carried out the threats. That is because neither Justine nor Bradley would have known that he would not have carried out the threats. Without that insight, I cannot be satisfied that he is a fit and proper person to hold a firearms licence. 10. I am also concerned that he might be lacking insight into the extent of trauma that the stressors are causing him. Mr Riley conceded that the Applicant's congenital heart condition and Catherine's health condition would both be ongoing source of stress for the Applicant. This concession conflicts with the Applicant's evidence. Mr Riley was not satisfied that the Applicant had sufficient strategies to cope on his own or that he might not seek help that he needs. 11. In my view, unless he obtains further psychological assistance, it is likely that he would still react angrily when he perceives that he is being treated unfairly. In that situation there is a real and appreciable risk that he would make threats of a similar nature to those that he made to Justin. That being the case, it is not in the public interest that he continues to hold the licence while that risk has not been addressed. Conduct of that kind would not be consistent with the underlying principle of the Act to ensure public safety. 12. These issues can be resolved by addressing the characteristics that Mr Riley has identified. 13. The Tribunal's role is to decide whether the decision to revoke the Applicant's licence was the correct and preferable one. On the evidence before me the Respondent has made the correct and preferable decision. Accordingly, it should be affirmed. Order The decision under review is affirmed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 26 July 2019