Turner v Commissioner of Police, New South Wales Police Service [2001] NSWADT 169 (18 October 2001)

Last Updated: 6 November 2001

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Turner -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 169

PARTIES: APPLICANT

Mark Ronald Turner

RESPONDENT

Commissioner of Police, New South Wales Police Service

FILE NUMBERS: 003378

HEARING DATES: 16/05/2001

SUBMISSIONS CLOSED: 22/06/2001

DECISION DATE: 18/10/2001

BEFORE: Britton A - Judicial Member

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

Crimes Act 1900

Firearms (General) Regulation 1997

Firearms Act 1996

CASES CITED: Cusumano -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 50

APPLICATION: Firearms Act - firearms licence - revocation of licence or permit

Firearms licence - revocation of licence or permit

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

P Carey, solicitor

RESPONDENT REPRESENTATIVE: RESPONDENT

C Capper, advocate

ORDERS: The Commissioner's decision to revoke Mr Turner's Category A, B and H firearms licences is affirmed.

Reasons for Decision:

1 Mark Turner has applied under s. 75 of the Firearms Act 1996 (the Firearms Act) to the Administrative Decisions Tribunal (ADT) for a review of the decision made by a delegate of the Commissioner of Police, NSW Police Service (the Commissioner) to revoke his Category A, B and H firearms licences. By way of notice dated 10 August 2000 Mr Turner was advised of the Commissioner's decision to revoke his firearm licences. An internal review conducted at the request of Mr Turner affirmed the Commissioner's original decision.

2 The issue for determination in this inquiry is whether the Commissioner made the correct and preferable decision having regard to any relevant factual material and any written or unwritten law: Administrative Decisions Tribunal Act (NSW) 1997 (the Tribunal Act), s. 63(1).

Background

3 Mr Turner was granted a Category A/B firearms licence under the Firearms Act on 30 April 2000 for the `genuine reason' of recreational hunting /vermin control. A Category H licence was granted on the same day for the `genuine reason' of target shooting.

4 On 8 July 2000 Mr Turner was involved in a domestic dispute with his wife, Deborah Lee Myers at their home in Falls Creek. The Police were called and an interim Apprehended Violence Order taken out on behalf of Ms Myers. The attending officers searched the premises and found and seized a number of long arm rifles and a hand pistol.

5 Later that day Mr Turner attended the Nowra Police Station and was charged with the offences of common assault under s. 61 of the Crimes Act 1900 and not keep firearm safe under s. 39(1)(a) of the Firearms Act. Mr Turner volunteered to police that they had not located all firearms stored at his residence and took them to a number of pistols missed in the police search. These firearms were subsequently seized.

6 The matter came before Nowra Local Court on 14 July 2000 and Mr Turner was convicted of failing to keep firearms safe and placed on a twelve-month good behaviour bond. In respect of the offence of common assault the Presiding Magistrate ordered that that charge be dismissed pursuant to s. 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999. The attendant AVO was withdrawn.

7 It is not in issue that at all relevant times Mr Turner's pistols were stored in compliance with the relevant provisions of the Firearms Act, namely they were locked in a steel safe, that was bolted to the floor. Nor is it suggested that at any time ammunition was stored together with Mr Turner's firearms as prohibited by s. 40(1) (d) and s. 41 (1)(c) of the Firearms Act. Mr Turner's conviction relates solely to the storage of six long arm rifles. Contrary to the provisions of s. 40(1)(a) and s. 40(1) (b) of the Firearms Act these rifles were not stored in a locked receptacle, appropriately fixed to prevent its easy removal. Rather they were stored inside a built-in wardrobe in the spare bedroom of the residence Mr Turner and Ms Myers.

Relevant legislation

8 The Firearms Act sets up a comprehensive scheme for the licensing of persons in New South Wales to possess and use firearms. The principles and objects of that Act are set out in s. 3. The underlying principles of the Act include:

(b) to improve public safety:

(b) to improve public safety:

(i) by imposing strict controls on the possession and use of firearms, and

(ii) by promoting the safe and responsible storage and use of firearms

9 One of the objects of the Act is to ensure that firearms are stored and conveyed in a safe and secure manner: s. 3(2)(e).

10 Section 24 of the Firearms Act relevantly provides:

(1) A licence that authorises a person to possess or use a firearm is automatically revoked if the licensee becomes subject to a firearms prohibition order or an apprehended violence order.

(2) A licence may be revoked:

(a) for any reason for which the licensee would be refused a licence of the same kind or

(b) . . .

(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence,

11 Section 11 (1) provides that the Commissioner may issue a licence in respect of an application, or refuse any such application. Section 11(3) relevantly provides that 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

(b) ...

(c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and

(d) ...

12 Section 11(5) provides that a licence must not be issued to a person who:

(a) ...

(b) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or

(c) is subject to an apprehended violence order or who has, at any time within 10 years before the application for the licence was made, been subject to such an order (other than an order that has been revoked), or

(d) is subject to a good behaviour bond, whether entered into in New South Wales or elsewhere, or

(e) is subject to a firearms prohibition order.

13 Clause 5 of the Firearms Regulations provides that an offence relating to the possession or use of a firearm committed under the law of any Australian jurisdiction is a prescribed offence for the purpose of s. 11(5) (b) of the Firearms Act .

14 Part 4 of the Firearms Act provides for the safekeeping of firearms. The general requirements are set out in s.39 which relevantly provides that 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.

15 As a holder of a category A and B licence s. 40 of the Act required Mr Turner to comply with the following specific requirements:

(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.

Maximum penalty: 20 penalty units or imprisonment for 12 months, or both.

(2) A licensee does not have to comply with the requirements of this section if the licensee satisfies the Commissioner that the licensee has provided alternative arrangements for the storage of firearms in the licensee's possession that are of a standard not less than the requirements set out in this section.

16 As a holder of a category H licence s. 42 of the Firearms Act required Mr Turner to comply with the following specific requirements (in respect of those firearms to which that 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.

Maximum penalty: 50 penalty units or imprisonment for 2 years, or both.

(2) A licensee does not have to comply with the requirements of this section if the licensee satisfies the Commissioner that the licensee has provided alternative arrangements for the storage of firearms in the licensee's possession that are of a standard not less than the requirements set out in this section.

Evidence

17 Mr Turner and Ms Myers each gave evidence by way of written statements and oral evidence. A statement of Senior Constable Fisher, the attending officer on the day of the incident was tendered in evidence. Constable Fisher was not required for cross-examination.

18 Mr Turner gave evidence that he had used and possessed firearms for about twenty years and prior to the July 2000 dispute had not been involved in any incident involving firearms. He gave evidence that he understood and appreciated the need to exercise care and diligence in respect to the storage of and use of firearms. Ms Myers corroborated Mr Turner's claim that he was safety conscious and attested that he never left his firearms unattended. According to Ms Myers when Mr Turner needed to clean or service his firearms, he did so out of the view of household members in the spare room, with the door shut. She said he seldom mentioned his firearms and had never threatened her with a firearm, or, to her knowledge anyone else.

19 It is not in issue that the domestic dispute involving Mr Turner and Ms Myers was heated and violent. Both lost their temper. Mr Turner aggressively shoved Ms Myers. Ms Myers attempted to slam the door of the boot of a car on Mr Turner and throw a large rock at him.

20 Mr Turner gave evidence that prior to moving to his Falls Creek residence in 2000 he resided at his father's property in Berry. There, claims Mr Turner his firearms had been securely stored in a locked and secure room. He estimated that in about early May 2000 he moved the firearms to his new residence. Ms Myers stated that Mr Turner was mistaken; the firearms were moved sometime after early May.

21 According to Mr Turner it was only when he had relocated his rifles to Falls Creek that he realised that the steel cabinet in which they had been stored at his father's property was too large for the wardrobe where he intended to house both his rifles and pistols. He said that it had been his intention to shorten the cabinet so it would fit in the wardrobe but, because of work pressures this had not been done by the time of the incident. In the meantime the rifles were kept in a wardrobe behind some clothing and a laundry basket containing toys. He claimed that this was a temporary measure only.

22 In cross-examination Mr Turner conceded that he had not asked the local police, the pistol club of which he was a member or the local shooters association whether the rifles could be stored with them until such time as the cabinet had been rebuilt. He said he decided against returning the rifles to his father's property as in his view they were safer with him.

23 Both Mr Turner and Ms Myers were away from their residence for extended periods throughout the week because of work commitments. During their absence Ms Myers' seventeen year old daughter remained at the property.

24 According to Mr Turner on relocating his firearms to Falls Creek he immediately took steps to bolt the steel cabinet housing the pistols to the floor of the wardrobe.

25 Mr Turner's children of a previous relationship stayed with Mr Turner and Ms Myers on occasion and slept in the spare room where the firearms were stored.

Findings and Conclusions

26 Had the application before me concerned a decision of the Commissioner to refuse to issue a firearms licence, s. 11(5) of the Firearms Act would in effect mandate that I affirm the Commissioner's original decision. Section 11(5) is expressed in mandatory terms providing that a licence must not be issued to a person who satisfies any one of the five grounds listed in s. 11(5)(a) - s. 11(5)(e). Mr Turner's conviction in respect of a prescribed offence (s.11(5)(b)) together with the fact that he is currently on recognisance (s. 11(5)(d)) triggers the operation of s.11(5) and dictates that the Commissioner must refuse to grant him a licence if he were to make such application.

27 However this is not the issue here. The Commissioner's original decision concerns the revocation of Mr Turner's licences. Section 24(2)(a) provides that a firearms licence may be revoked for any reason for which the licensee would be refused a licence. Thus the fact that Mr Turner satisfies at least two of the matters set out in s. 11(5) is relevant but not determinative.

28 Mr Capper for the respondent submits that the Tribunal should affirm the Commissioner's original decision as, first, Mr Turner has been convicted of the offence of failing to keep firearms safe, a prescribed offence for the purpose of s. 11(5)(b); and, second, the evidence taken as a whole both in relation to the domestic dispute and the storage of firearms demonstrates that Mr Turner is not a fit and proper to hold a firearms licence.

29 Mr Carey for the applicant concedes that if Mr Turner were to apply for a licence by virtue of the operation of s. 11(5) the Commissioner would have no option but to refuse to grant him a firearms licence. However Mr Carey asserts that given the circumstances of this case and Mr Turner's otherwise unblemished record in respect of firearms the Tribunal should exercise the discretion granted by s. 24(4) discretion in favour of Mr Turner.

30 Mr Carey submits that while Mr Turner does not seek to deny the offence for which he has been convicted, taken as a whole the evidence shows that he did take reasonable steps to store the firearms in a secure fashion albeit though not in a manner compliant with the relevant provisions of s. 40. At all relevant times the offending rifles were hidden from view; the ammunition was stored separately from the firearms, indeed no ammunition was kept at the premises. Importantly the pistols were at all relevant times stored in the manner prescribed by the Firearms Act. But for time pressures, Mr Turner would have stored the rifles in compliance with the conditions of his firearms licence and the statutory requirements.

31 In the alternative Mr Carey submits that if the Tribunal determines that Mr Turner's licence should be revoked an order should be made to allow Mr Turner to retain his licence for a short period to allow him to dispose of his firearms through a licensed dealer.

32 The legislation provides no express guidance as to how the Commission's discretion in respect of s. 24(2) should be exercised. I concur with the view expressed by Deputy President Hennessy in Cusumano -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 50 [at 23] that the discretion to revoke a licence should be exercised in a way which promotes the principles and objects of the Firearms Act. The improvement of public safety by promoting the safe and responsible storage of firearms is identified as one of the underlying principles of the Act. One of the objects of the Act is to ensure that firearms are stored and conveyed in a safe and secure manner: s. 3(2)(e). It is clear from the legislation that Parliament has identified the safe storage of firearms as a central and critical objective of the legislation. As is made clear from Part 4 of the Firearms Act Parliament did not leave the manner in which firearms are to be stored to the discretion of licence holders but instead elected to impose detailed and prescriptive requirements on all licensees.

33 There may be situations where the relevant breach in respect of the storage of firearms is of a trivial or minor nature and of itself does not warrant the revocation of the relevant licence. In this case it could not be said that Mr Turner acted in complete disregard of the statutory requirements to safely store his firearms. Here as pointed out by Mr Carey they were hidden from public view; stored separately from any ammunition; the offending storage arrangements were temporary only. There is no evidence before me to suggest that when stored at his father's property Mr Turner's firearms were stored in a manner contrary to the relevant legislative requirements. However the fact remains that Mr Turner was convicted under s. 39 of the Firearms Act for failing to keep firearms safe. I note with some concern that the firearms were stored in a spare room used on occasion by Mr Turner's young children and that he and his wife were absent from their Falls Creek residence for significant periods during the time the rifles were stored in a manner prohibited by the Firearms Act.

34 It is my view that the circumstances surrounding the storage of the firearms throughout the relevant period clearly indicates that Mr Turner has failed to exercise the high standards imposed by Part 4. Part 4 makes clear that firearms are to be stored in the prescribed manner at all times. While I accept Mr Turner's evidence that the offending arrangements were temporary only, the evidence shows that for what can only be seen as a significant period of about six weeks the rifles were not stored in a receptacle but in the back of a unlocked wardrobe in an unlocked room.

35 Accordingly in light of the strict controls imposed on the storage of firearms as mandated by the Firearms Act and Regulations and Mr Turner's failure to comply with these for which he has been convicted it is my view that the Commissioner made the correct and preferable decision in revoking Mr Turner's licence pursuant to s. 24(2)(a) of the Firearms Act. Given this finding it is not necessary for me to consider the other grounds relied on by the Commissioner.

Return of seized firearms

36 I turn finally to the submission made by Mr Carey in respect of the return of Mr Turner's firearms seized by the police on 8 July 2000 and currently held by the NSW Police Service, Firearms Registry. I understand Mr Carey to submit that if the Tribunal is not minded to overturn the Commissioner's original decision, consideration should be given to making orders that would allow the firearms to be returned to Mr Turner for a short period so as to allow him to dispose of the firearms through a registered dealer. It was Mr Carey's understanding of relevant law and practice that unless such order was made Mr Turner would be deprived of any income that would otherwise be generated from their sale.

37 The evidence indicates that the firearms are worth approximately $7000 and that such income is badly needed by Mr Turner and Ms Myers who are struggling to meet the financial commitments of their new business.

38 At the conclusion of the hearing there was some discussion on the power of the Tribunal to make orders in respect of firearms seized under s.42 of the Firearms Act. Both parties were given the opportunity to put on written submission on this issue.

39 I concur with the view expressed by Mr Capper that the orders sought by Mr Carey are outside the Tribunal's powers. In written submissions Mr Capper has assisted the Tribunal and provided me with written advice regarding the practice of the Firearms Registry in respect of seized firearms. That advice reveals that the practice of the Firearms Registry is where firearms are seized and the relevant licence holder's licence revoked the Police Service may facilitate the transfer of the firearms to a registered dealer.

40 In the light of Mr Turner's long history of obedience to the law, his co-operation with police in respect of this matter, his candour in these proceedings and the obvious hardship he and Ms Myers will suffer if they are deprived of the income of these firearms I strongly recommend that the Commissioner approve the transfer of the firearms to a dealer to allow them to be sold on Mr Turner's behalf.

Orders

41 The Commissioner's decision to revoke Mr Turner's Category A, B and H firearms licences is affirmed.