Cleofe v Commissioner of Police, New South Wales Police Service; Alpha Intelligence Securities Pty Ltd v Commissioner of Police, New South Wales Police Service [2001] NSWADT 2 (24 January 2001)

Last Updated: 6 June 2001

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Cleofe -v- Commissioner of Police, New South Wales Police Service; Alpha Intelligence Securities Pty Ltd -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 2

PARTIES: APPLICANTS

Jerry Cleofe

Alpha Intelligence Securities Pty Ltd

RESPONDENT

Commissioner of Police, New South Wales Police Service

FILE NUMBERS: 003356

003357

003370

003371

HEARING DATES: 15/01/2001

SUBMISSIONS CLOSED: 15/01/2001

DECISION DATE: 24/01/2001

BEFORE: Hennessy N (Deputy President)

LEGISLATION CITED: Firearms (General) Regulation 1997

Firearms Act 1996

Security Industry Act 1997

Security Industry Regulation 1998

CASES CITED:

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

Firearms licence - revocation of licence or permit

Security Industry Act - security industry licence - revocation or suspension of licence

Security industry licence - revocation or suspension of licence

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

In person

RESPONDENT REPRESENTATIVE: RESPONDENT

J Tunks, solicitor

ORDERS: 1. The Commissioner's decision to revoke Category H firearms licence in the name of Mr Cleofe and Category H business pistol licence held by Mr Cleofe on behalf of Alpha Intelligence Securities Pty Limited is affirmed.

2. The Commissioner's decision to revoke Class 1A and Class 1B security licence and masters security licence in the name of Mr Cleofe, is set aside.

Reasons for Decision:

1 These proceedings relate to decision made by the Commissioner of Police (the Commissioner) to revoke two firearms licences and two security industry licences. The licences were held by Mr Cleofe and Alpha Intelligence Securities Pty Ltd, a company of which Mr Cleofe is the sole director.

2 The basis for the revocation of these licences was a finding by the Local Court on 24 July 2000 that Mr Cleofe was guilty of the offences of not having approved storage in compliance with requirements under the Firearms Act 1996 (the Firearms Act) and not taking all reasonable precautions to ensure that a firearm was safely kept. Although Mr Cleofe was found guilty, the Magistrate did not record a conviction. Mr Cleofe was discharged on entering into a bond to be of good behaviour for 12 months.

3 After Mr Cleofe was found guilty of the offences, the Commissioner revoked the following licences:

Category H firearms licence in the name of Mr Cleofe;

Category H business pistol licence held by Mr Cleofe on behalf of Alpha Intelligence Securities Pty Limited;

Class 1A and Class 1B security licence in the name of Mr Cleofe authorising him to patrol, guard, watch or protect property (including the guarding of cash in transit) and to act as a bodyguard, and

masters security licence to employ or provide persons to carry on security activities.

Legislation

4 The Firearms Act sets up a scheme for licensing people to possess and use firearms. There are several provisions which allow the Commissioner to revoke a licence. Although the Commissioner relied on "public interest" as the ground for revoking the firearms licences, at least two other grounds are potentially relevant. These are that:

the Commissioner would have been required to refuse the licensee a licence of the same kind had he been applying for one (s 24(2)(a); and

the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence (s 24(2)(c)).

5 These grounds and the ground of "public interest" are set out in the s 24(2) of the Firearms Act:

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

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

(d) for any other reason prescribed by the regulations.

6 In relation to s 24(2)(a), the Commissioner would be required to refuse Mr Cleofe a firearms licence had he been applying for one. Under s 11(5)(b) a licence must not be issued to a person who:

(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.

7 Under Clause 5(a) of the Firearms (General) Regulation 1997 (the Firearms Regulation) the following offence is prescribed:

An offence relating to the possession or use of a firearm, or any other weapon, committed under:

(i) the law of any Australian jurisdiction, or

(ii) the law of any overseas jurisdiction (being an offence that, had it been committed in Australia, would be an offence under the law of an Australian jurisdiction).

8 The offence for which Mr Cleofe was found guilty was such an offence.

9 In relation to the third ground, Clause 17 of the Regulation states that:

In accordance with section 24 (2) (d) of the Act, a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is issued to continue to hold it.

10 The Security Industry Act 1997 also provides for revocation of a licence in certain circumstances. Section s 26 (1)(a), (c) and (d) of the Act state that:

A licence may be revoked:

(a) for any reason for which the licensee would be required to be refused a licence of that class, 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.

11 In relation to s 26(1)(a) of the Act, one reason that the Commissioner would be required to refuse to grant an applicant a security industry licence is where the person has been convicted of an offence prescribed by the Regulations within the previous 10 years. Certain offences relating to firearms or weapons are prescribed. Clause 11 of the Security Industry Regulation 1998 (Security Industry Regulation) states that:

For the purposes of section 16 (1) (a) and (b) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales:

An offence relating to the possession or use of a firearm, or any other weapon, committed under:

(i) the law of any Australian jurisdiction, or

(ii) the law of any overseas jurisdiction (being an offence that, had it been committed in Australia, would be an offence under the law of an Australian jurisdiction), and being an offence that would disqualify the applicant concerned from holding a licence under the Firearms Act 1996.

12 In relation to s 26(1)(d) of the Security Industry Act, Clause 18 of the Security Industry Regulation 1998 provides that the Commissioner may revoke a licence if the Commissioner considers that it is not in the public interest for the person to whom it is granted to continue to hold it.

Documentary Evidence

13 The following documentary evidence was before the Tribunal:

Reference from Glenn J Vigar, Managing Director, Cosmopolitan Protection Security;

letter from R Jozic dated 9 July 2000;

letter from Janette Lee, Director, Operations, Silverbrook Research Pty Ltd;

statement from Mr Cleofe dated 15 November 2000;

copies of documents forwarded by the Commissioner of Police.

Oral evidence

14 Mr Cleofe gave evidence that he has been working as a security guard for approximately four years. His first job was as an employee of Cosmopolitan Protection Security. He worked there for about 2 years before setting up his own company, Alpha Intelligence Securities Pty Ltd. That company provided security services to Cosmopolitan Protection Security for a further 2 years. For the last 2 years, Mr Cleofe has been providing security services to Silverbrook Research Pty Limited, a computer company in Balmain.

15 On the night of the 3 June 2000, Mr Cleofe said he started his shift at 8 pm and was relieved by Robert Jozic at about midnight. Mr Cleofe said that Mr Jozic had agreed to work that night to repay a debt of $80.00. When Mr Jozic arrived, Mr Cleofe said he called a taxi so he could go to a night club in the city. He then took his firearm out of its holster and took out the ammunition. He put the firearm in the drawer of a cabinet next to the reception desk. He put the ammunition in the kitchen, in a saucepan which belonged to him. He said he did not lock the gun in the safe because Ms Lee, a director of Silverbrook Research Pty Limited, had the key to the safe and was away for the weekend. The taxi arrived and Mr Cleofe went to the Hilton Hotel Nightclub, then to the Bourbon and Beef Steak at Kings Cross and finally to Show Girls. During the course of the evening he drank seven bottles of long neck beer.

16 When at Show Girls, Mr Cleofe noticed that he still had his holster on but that it was empty. He immediately went to the police station and reported that his gun was missing. The police told him to wait while they searched the premises where he had been drinking to see if they could find the gun. During that time, Mr Cleofe said that he remembered that he had left the gun at work and then rang Mr Jozic to see if he could find it. Mr Jozic found the firearm. Mr Cleofe then told police that he had found the firearm and it was safe. The police officers advised Mr Cleofe that they would go to the premises to check to see that the gun was there. Mr Cleofe then rang Mr Jozic again and asked him to get the ammunition from the kitchen and bring it into the reception area. He said he did this so that the police could see both the firearm and the ammunition at the same time.

17 It is not in dispute that the police attended the premises and confiscated the firearm and the ammunition.

18 When questioned about his practices in relation to storing his firearm, Mr Cleofe said that he always stored it in a safe. He said that Ms Lee was mistaken when she said in her letter that:

On or about Thursday June 3 2000, Mr Jerry Cleofe of Alpha Intelligence Securities Pty Ltd requested permission to have exclusive use of the Company Director's safe for security purposes. Having assessed the safety in terms of firearm requirements, Mr Cleofe determined that it was a suitable place to secure an unloaded firearm for a period over the forthcoming weekend.

19 Mr Cleofe said that, contrary to this statement, he had been using the company safe to store the firearm for 2 years. He said that each day Ms Lee opened and locked the safe at the start of his shift (midnight) and opened and locked it again at 8 am the following morning.

20 Mr Cleofe admitted that he was guilty of the charges against him and that it was careless of him to leave the gun and ammunition unlocked. He said he was in a hurry to go out and took the risk of leaving the firearm unlocked. He said he thought it would be alright because there was another guard on the premises. He admits that he "hid" the gun and that the other guard did not know it was there until he rang him from the police station. He said he made a "big mistake" and has learnt a "good lesson" from this incident.

Findings of fact

21 The most important fact in this case, which is not in dispute, is that on the night of 3 June 2000, Mr Cleofe left a firearm in an unlocked drawer and was found guilty of certain offences under the Firearms Act. There is conflicting evidence about whether he placed the ammunition separately in a pan in the kitchen, or placed it with the firearm. Mr Cleofe said he stored the ammunition separately and later asked Mr Jozic to put it with the firearm. When the police came, they found that the firearm and the ammunition together. There was no relevant evidence from Mr Jozic. He could have included an account of the events of the evening of 3 June 2000 in his brief statement, but he did not. Because of Mr Cleofe's specific description of the pan in which he kept the ammunition I am satisfied that he did store the ammunition separately and later asked Mr Jozic to put it with the firearm.

22 A more significant conflict in the evidence relates to the method Mr Cleofe routinely used to store his firearm and ammunition. His evidence was that he had stored them in the company safe ever since he started providing security services for Silverbrook Research Pty Ltd. He said that Ms Lee opened and locked the safe at midnight when he began his shift and opened and locked it again at 8 am the following morning.

23 This version of events is highly unlikely. Mr Cleofe worked 7 days a week. He did not offer any explanation of what happened when Ms Lee was not there to open or lock the safe. In addition, this version conflicts with the statement of Ms Lee quoted above.

24 Mr Cleofe was found guilty of not having approved storage in compliance with the requirements of the Firearms Act. This finding, together with the improbability of Mr Cleofe's evidence about storage arrangements and Ms Lee's conflicting statement, lead me to conclude that the night of the 3 June 2000 was not the only night Mr Cleofe has failed to store his firearm in accordance with the requirements of the Act.

Applicant's submissions

25 The applicant submitted that although he was guilty of the offences in relation to the firearm, this did not justify revoking his security industry licence. Mr Cleofe conceded that he could obtain other work as a security guard without a firearms licence as long as the client did not require an armed guard.

Respondent's submissions

26 In relation to the revocation of the firearms licences, Mr Tunks noted that "public interest" is the only ground relied on by the Commissioner in the Statement of Reasons. Mr Tunks advised the Tribunal that other grounds were also relevant.

27 While Mr Cleofe candidly admitted a serious breach of the Act, he also concede that he made a considered decision to "take a risk" in leaving the firearm and ammunition unsecured and potentially available to others. The fact that he was in a hurry to go out is no excuse. While he showed some contrition and has no other offences of any kind, this is a serious breach and revocation was the correct decision.

28 Mr Tunks provided written submissions in relation the ground of "public interest".

29 Mr Tunks made no oral submissions in relation to the revocation of the security industry licences. Instead he relied on the Statement of Reasons prepared by Ms Alvaro dated 8 November 2000.

Reasons and decision - firearms revocations

30 The first ground on which the Commissioner may revoke a licence is for any reason for which Mr Cleofe would be required to be refused a licence of the same kind. Given the nature of the offence, the Commissioner would have been required to refuse Mr Cleofe a licence had he been applying for one. Consequently the Commissioner has a discretion to revoke the licences. The second relevant ground on which the Commissioner could exercise his discretion to revoke the firearms licences is that Mr Cleofe has contravened a provision of the Firearms Act. (See s 24(2)(b)(ii)). Thirdly the Commissioner may revoke the licence on the ground that Mr Cleofe is not a fit and proper person to hold a licence. Finally, the Commissioner may revoke the licence if it is not in the public interest for the Mr Cleofe to continue to hold it.

31 In 1996 the government enacted "tough" new gun laws. (See Second Reading Speech, Hansard, 25 June 1996, Legislative Council, p 3557) One of the underlying principles of that law is to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage and use of firearms. (Firearms Act s 3(1)(b)). Ensuring that firearms are stored in a safe and secure manner decreases the likelihood that they will contribute to an accidental or deliberate injury or death.

32 Despite the explanations provided by Mr Cleofe I am satisfied on the basis of the evidence that he did not store his firearm safely and securely. Being in a hurry to go out and not having access to a key to the safe do not excuse this fundamental breach of the requirements of the Firearms Act. On that basis, the Commissioner made the correct and preferable decision in revoking Mr Cleofe's firearms licences on each of the grounds listed above.

Reasons and decision - security industry licence revocations

33 Mr Cleofe's failure to store his firearm safely and securely does not necessarily reflect adversely on his ability to perform the duties of a security officer. He has provided references from previous and current employers which attest to his professional skill and integrity. Mr Cleofe agreed that he does not require a firearms licence to continue work in the security industry, although his opportunities for work would be more limited. In these circumstances I am confident that he is a fit and proper person to continue to hold Class 1A, 1B and masters security industry licences and it would not be contrary to the public interest for him to do so. Mr Cleofe should be aware that when these licences expire, the Commissioner may be required to refuse to grant him a new licence because of the terms of s 11(5)(b) of the Security Industry Act.

Orders

34 (1) The Commissioner's decision to revoke Category H firearms licence in the name of Mr Cleofe and Category H business pistol licence held by Mr Cleofe on behalf of Alpha Intelligence Securities Pty Limited is affirmed.

(2) The Commissioner's decision to revoke Class 1A and Class 1B security licence in the name of Mr Cleofe, and masters security licence is set aside.