McVerry v Commissioner of Police, New South Wales Police Service [2003] NSWADT 179 (4 August 2003)

Last Updated: 5 August 2003

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: McVerry v Commissioner of Police, New South Wales Police Service [2003] NSWADT 179

PARTIES: APPLICANT

Ambrose Brenard McVerry

RESPONDENT

Commissioner of Police, New South Wales Police Service

FILE NUMBERS: 023313

HEARING DATES: 24/03/2003

SUBMISSIONS CLOSED: 24/03/2003

DECISION DATE: 04/08/2003

BEFORE: Montgomery S - Judicial Member

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

Crimes (Sentencing Procedure) Act 1999

Firearms (General) Regulation 1997

Firearms Act 1996

Security Industry Act 1997

CASES CITED: Yaghi-v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 91

Cusumano v. Commissioner of Police, New South Wales Police Service [2001] NSWADT 50

O'Sullivan v. Farrer [1989] HCA 61; (1989) 168 CLR 210

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Ward -v- Commissioner of Police [2000] NSWADT 28

Wilkinson -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 59

Cleofe -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 2

Pantle-v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 207

Tolefoa v COP (2000) NSWADT 9

Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657

Phegan v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 127

Hart -v- Commissioner of Police, New South Wales Police Service [2003] NSWADT

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

R Hewson, barrister

RESPONDENT REPRESENTATIVE: RESPONDENT

C Capper, advocate

ORDERS: The Commissioner's decision to revoke Mr. McVerry's Category H firearms licence is affirmed.

Reasons for Decision:

The Application

1 These proceedings relate to a decision by the Commissioner of Police, New South Wales Police Service ("the Commissioner") to revoke the Category H firearms licence held by Mr Ambrose McVerry. Mr. McVerry was issued the licence in question on 20 October 1997 and it would have been due to expire on 5 December 2002. The licence was suspended on 18 July 2002 and subsequently revoked on 20 September 2002.

Background

2 The decision to revoke Mr. McVerry's licence followed the suicide of an employee ("the employee") of a security business operated by Vesmeade Pty Ltd trading as BCA Security Services ("BCA"). Mr McVerry is a director of BCA.

3 The employee signed an agreement for him to be employed in the capacity of a security guard with BCA and was given a BCA issued firearm. At the time he commenced employment with BCA the employee had not completed any of his mandatory firearms safety training courses as required by law. Therefore he was not authorised to possess or carry any firearms.

4 The employee retained possession of the firearm during periods when he was off-duty, however, he did not hold an off duty pistol permit, authorising him to possess his firearm at home, while off duty. On 9 January 2002, the employee used the firearm to commit suicide.

5 Mr. McVerry was subsequently charged with offences of allowing an unauthorised person to possess/use a firearm and of failing to ensure that the employee complied with clause 69(2) of the Firearms (General) Regulation 1997 ("the Regulation"). He pleaded guilty to those charges, appeared before the Gosford Local Court on 19 July 2002 and was convicted of those offences. On 30 September 2002 the Gosford District Court upheld a severity appeal. The offences were found proved but dismissed under section 10 of the Crimes (Sentencing Procedures) Act 1999 without proceeding to a conviction.

6 On 17 October 2002 Mr. McVerry sought an internal review of the Commissioner's decision to revoke his licence. The internal review was finalised on 5 December 2002 and the decision was taken that the original decision to revoke Mr. McVerry's licence was to stand. Mr. McVerry applied to the Tribunal for review of that decision.

7 With one exception, the facts of this matter are not in dispute. With the exception of the incidents associated with this particular matter, there is no issue in relation to Mr. McVerry's conduct or character. Mr McVerry is a responsible honest and well-respected citizen who contributes freely of his time and effort to many community and charitable organisations. Testimonials provided on his behalf support this view.

8 There is some disagreement between the parties regarding the times at which BCA issued the employee with firearms. This area of disagreement results from apparent discrepancies in BCA's Register of Transfer of Firearms and Ammunition. The register indicates that BCA issued a firearm to the employee on 14 December 2001. The employee signed the firearms and ammunition register on that day and Mr McVerry endorsed the entry. The register records that Mr McVerry signed in the weapon at 1805 hours on 5 January 2002. However, the register also records that the employee signed out the weapon on 27 December 2001 at 0600 hours.

9 The Commissioner suggests that these discrepancies show that Mr McVerry completed the ledger in advance in anticipation of the employee returning the weapon on 5 January 2002. It is common ground that the weapon was not returned at that time and was subsequently used by the employee to commit suicide. Mr McVerry maintains that the employee in fact returned the weapon on 27 December 2001 and that it was then reassigned to him on that day. The discrepancy is that Mr McVerry inserted the wrong date and time, namely 5 January 2002 at 1805 instead of 27 December 2001 at 0600.

Reviewable decision

10 The reviewable decision is that of the Commissioner to revoke Mr. McVerry's firearms licence. On 27 December 2002 Mr. McVerry applied to this Tribunal for review of the Commissioner's decision. The matter was listed before the Tribunal's President on 4 February 2003 at which time he made directions for the filing of documents and the matter was listed for hearing. The matter subsequently came before me for hearing on 24 March 2003 and proceeded on that day.

Applicable Legislation

11 Section 63 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") provides for the approach to be taken by this Tribunal in determining an application for a review of a reviewable decision. Section 63 provides:

63 Determination of review by Tribunal

(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.

(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:

(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or

(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

12 The legislation of most relevance to these proceedings is the Firearms Act 1996 ("the Act") and the Regulation. The principles and objects of the Act are set out in section 3 which provides:

3 Principles and objects of Act

(1) The underlying principles of this Act are:

(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and

(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, and

(c) to facilitate a national approach to the control of firearms.

(2) The objects of this Act are as follows:

(a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,

(b) to establish an integrated licensing and registration scheme for all firearms,

(c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,

(d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms,

(e) to ensure that firearms are stored and conveyed in a safe and secure manner,

(f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.

13 A licence is held subject to conditions. Section 19 of the Act sets out conditions relevant to these proceedings as follows:

"19 Conditions of licence

(1) A licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose.

(2) Without limiting subsection (1), each licence is subject to the following conditions:

(a) the licensee must comply with the relevant safe keeping and storage requirements under this Act,

(b) the licensee must not permit any other person to possess or use any firearm in the licensee's possession if that other person is not authorised to possess or use the firearm,

(c) the licensee must, in accordance with such arrangements as are agreed on by the licensee and the Commissioner, or, in the case of a licensed firearms dealer, at any reasonable time, permit inspection by a police officer (or such other person as may be prescribed by the regulations) of the licensee's facilities in respect of the storage and safe keeping of the firearms in the licensee's possession,

(d) the licensee must not possess, at any one time, any amount of ammunition that exceeds the amount (if any) prescribed by the regulations, unless authorised in writing by the Commissioner,

(e) the licence cannot be transferred to another person.

(3) A licence is subject to such other conditions as may be prescribed by the regulations."

14 The relevant safe keeping and storage requirements are set out in Part 4 of the Act as follows:

"Part 4 - Safe keeping of firearms

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.

Maximum penalty: 50 penalty units or imprisonment for 2 years, or both, if it is established beyond reasonable doubt that the firearm concerned was a prohibited firearm or a pistol, or 20 penalty units or imprisonment for 12 months, or both, in any other case.

(2) The regulations may specify the precautions that are taken to be reasonable precautions for the purposes of this section."

"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.

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."

15 The Regulation makes provision for the issue of a licence only if the applicant understands the requirements of the Act concerning firearm safety and storage. Clause 7 of the Regulation provides:

"7 Licence applicant's understanding of requirements concerning firearm safety and storage

Before being issued with a licence, the applicant must prove to the Commissioner's satisfaction:

(a) that the applicant is aware of, and understands, the requirements of the Act concerning firearm safety and storage, and

(b) that the applicant will, if issued with a licence, be able to comply with those requirements."

16 Part 7 of the Regulation makes special provision for security guards. Provisions in that Part of most relevance to these proceedings are:

"63 Requirements for security guard employers

(1) A person who employs security guards who are authorised to possess firearms must:

(a) keep in safe storage all firearms authorised to be possessed by those security guards when they are not on duty, and

(b) in addition to the requirements set out in Part 4 of the Act, ensure that any firearm required to be kept in safe storage is secured in such a manner as would reasonably prevent its removal otherwise than by the employer or an authorised employee.

(2) A person who employs security guards must not allow any firearm in the person's possession (including those firearms that have been acquired by the person in connection with the person's business) to be possessed or used by an employee who is not authorised to possess or use the firearm by a licence.

(3) A person who employs security guards must notify the Commissioner in writing if any employee (other than an employee who has been employed on a casual basis) who is the holder of a licence authorising possession or use of a firearm ceases to be employed by the person. The notice must be sent within 7 days of the employee ceasing to be so employed.

Maximum penalty (subclauses (1)(3)): 50 penalty units.

(4) Subclause (1) (a) does not apply to any firearm that is permitted to be retained by a security guard in accordance with clause 65 or 66."

"64 Employees to return firearms after being on duty

(1) A person who is employed as a security guard must, at the end of any period of duty, return any firearm in the person's possession to his or her employer's store of firearms unless the person is authorised to retain possession of the firearm in accordance with clause 65 or 66.

Maximum penalty: 50 penalty units.

(2) A person does not commit an offence under subclause (1) if:

(a) the person has not been on duty at his or her ordinary place of work, and

(b) it was not reasonably practicable, for reasons of distance or public safety, to return the firearm to the employer's store of firearms, and

(c) it was not reasonably practicable in the circumstances for an authorisation under clause 65 or 66 to be obtained before the end of the period of duty (eg because the person was required to travel unexpectedly in connection with the person's employment)."

"65 Arrangements for off-duty possession of pistols by employees

(1) The Commissioner may authorise in writing any person who is employed as a security guard to retain possession, between periods of duty as a security guard, of any pistol that the person is authorised by a licence to possess.

(2) The Commissioner must not authorise possession of a pistol between periods of duty unless the Commissioner is satisfied that:

(a) it is not practicable in the circumstances for the employee to return the pistol to the employer's store of firearms, and

(b) the pistol will be stored in accordance with the requirements of Part 4 of the Act.

(3) An employee's authorisation to retain possession of a pistol between periods of duty is subject to the following requirements:

(a) the pistol must be carried by the employee when the employee is travelling to or from work or in the course of a work-related journey,

(b) the pistol must be stored at the employee's place of residence,

(c) the employee must comply with the requirements of Part 4 of the Act,

(d) the employee must allow a police officer to inspect, at any reasonable time, the premises where the pistol is kept.

(4) An authorisation under this clause remains in force for such time as is specified in the authorisation unless it is sooner revoked by the Commissioner.

(5) The Commissioner may revoke any such authorisation if the Commissioner is satisfied that:

(a) the requirements of subclause (3) have not been complied with, or

(b) it is in the public interest to do so."

"66 Temporary arrangements for off-duty possession of pistols by employees

(1) If the Commissioner is satisfied that it is not reasonably practicable for a person who is employed as a security guard to comply with clause 64 (1):

(a) because the person is required to work on a temporary basis at a place other than the person's ordinary place of work, and

(b) because of the distance between the other place of work and the employee's place of residence,

the Commissioner may authorise in writing the person to retain possession, between periods of duty as a security guard, of any pistol that the person is authorised by a licence to possess.

(2) An employee's authorisation under this clause to retain possession of a pistol between periods of duty is, in addition to the requirements of section 39 of the Act, subject to the following requirements:

(a) the pistol must be carried by the employee when the employee is travelling to or from work or in the course of a work-related journey,

(b) the pistol must be stored in accordance with approved arrangements that have been made by the employer.

(3) An authorisation under this clause may only be given on a temporary basis, and remains in force for the limited period as is specified in the authorisation (unless sooner revoked by the Commissioner).

(4) The Commissioner may revoke an authorisation under this clause for such reason as the Commissioner thinks fit."

"67 Registers to be kept by security guard employers

(1) A person who employs security guards must keep in the approved form:

(a) a register in which are kept particulars of the acquisition of firearms by, the servicing of firearms on behalf of, and of the disposal of firearms and ammunition by, the employer, and

(b) a register in which are kept particulars of the names of each employee who is authorised by a licence to possess a firearm, and of the periods for which each such employee has possession of the firearm.

(2) The employer must ensure that each register is maintained in a book of not less than 100 pages in the following manner:

(a) the heading of each page is to be machine printed,

(b) the pages are to be bound in a manner that will prevent any page being readily removed,

(c) each page is to be machine numbered consecutively,

(d) entries are to be made in black or blue ink and any alteration to an entry must be made by interlineation or striking out and not by erasure,

(e) no page is to be extracted.

(3) The employer must:

(a) ensure that each register is kept in a place of safe keeping (not being a place in which any firearms are kept) at the place of business of the employer, and

(b) ensure that each register is kept for not less than 3 years after its completion, and

(c) ensure that an appropriate entry is made in the register referred to in subclause (1) (a) within 24 hours of the acquisition, servicing or disposal of a firearm, and

(d) ensure that an appropriate entry is made in the register referred to in subclause (1) (b) when any firearm (and any ammunition for the firearm) is transferred from the employer's store of firearms to the custody of an employee and when the firearm and ammunition is returned to the store of firearms, and

(e) immediately produce, if requested to do so by a police officer at any time, any such register to the officer and permit the officer to inspect, and make copies of any entry contained in, the register.

Maximum penalty (subclauses (1)(3)): 50 penalty units."

"69 Additional requirements relating to security guards

(1) The Commissioner may refuse to issue a licence to a person who is employed as a security guard unless the person:

(a) has completed, to the satisfaction of the Commissioner, an approved firearms safety test, and

(b) produces the person's class 1A licence under the Security Industry Act 1997.

(2) In addition to the firearms safety training courses required in connection with an application for a licence, a security guard who possesses a firearm must undertake, at least once a year, such continuing firearms safety training courses as may be approved.

(3) A person who employs security guards must:

(a) ensure that subclause (2) is complied with by the persons employed as security guards by the employer, and

(b) report to the Commissioner when those persons have completed the required training.

Maximum penalty (subclauses (2) and (3)): 20 penalty units."

17 The power of the Commissioner to revoke a firearms licence is set out in section 24 of the Act as follows:

24 Revocation of licence

(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.

(1A) The Commissioner must revoke a licence that is held for the purpose of employment as an armed security guard (within the meaning of the Security Industry Act 1997 ) if the licensee has failed to undertake any firearm safety training required under this Act or the regulations.

(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

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

18 The Commissioner may also revoke a firearms licence on public interest grounds pursuant to clause 17 of the Regulation. Clause 17 provides as follows:

"17 Revocation of licence - additional reasons

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."

Mr. McVerry's Case

19 Mr. McVerry appeared and presented oral evidence on his own behalf and was subjected to cross-examination. A number of testimonials were put in evidence in support of Mr. McVerry's good character, as was an affidavit by his business partner Mr. Craig Whitby.

20 Mr. Whitby's affidavit refers to the emotional and financial toll that Mr. McVerry has suffered as a consequence of the suicide of the employee and the loss of his licence. Mr. Whitby also indicates the changes to business operations that BCA has adopted following those events.

21 Mr. McVerry also provided an affidavit which purported to address some of the Commissioner's concerns and provides a reasonable outline of his case. That affidavit provides:

"My partner in the business was and still is Craig Edward Whitby and we have been partners since the business was established. I previously owned Lakes Security which business was bought out by ADT Security. BCA now does all of the work for ADT Security on the Central Coast. BCA used to have 4 (four) cars on the road every night covering the whole of the Central Coast. The business provided various services, namely static guards, patrols, alarms and cash escorts for ATM's and banks and up until the time that the master licence was suspended, BCA employed 12 (twelve) security guards.

The usual procedures which were in place during 2001 when security guards were employed were to obtain a resume from the prospective employee, have the employee complete an application form and sign a contract. We would then interview the employee and sight their drivers licence, their firearms licence and make sure that the licence was a category H and also their security licence and also make sure that the conditions were 1, A, B and C. Our practice was to request advice of the prospective employee regarding the possession of an off duty permit and a police approved safe and also accreditation. We would also request details of the holster which they would be using and we would satisfy ourselves personally that the prospective employee had knowledge of the weapon and have the employee demonstrate handling of the weapon at the interview.

The sign in and sign out procedure during 2001 was that when signing out a weapon, the employee attends at the BCA premises personally prior to the start of a shift, either myself or my partner Mr Craig Whitby would only issue a weapon to that employee and the weapon would be handed over to the employee with a standard amount of ammunition. The employee would then load the weapon and place it in his holster and then sign the register. Either myself or Mr Craig Whitby would then sign the register with a date and a time. The sign in procedure is similar in that the employee takes the weapon from the holster and then hands it either to myself or to Mr Craig Whitby and then we would check the ammunition and the condition of the weapon. The weapon would then be signed back in by either myself or Mr Whitby with a date and time. When a weapon is signed in and out at the same time, the same procedure is as described above except that the same weapon is handed back to the employee.

I met [the employee] in 1998. At that time he was a patrolman with Lakes Security. He had been a patrolman there for about 2 (two) years. I was also doing patrol duties with my own company, that is BCA. I remember meeting [the employee] on a number of occasions when he and I investigated break and enters or an alarm response. It was common for patrolmen to assist one another in these sorts of situations even though employed by different companies. [The employee] at this time carried a revolver whilst working for Lakes Security. I believe that in early 2000 Lakes Security went into liquidation.

I did not see [the employee] again until early 2001 when he was working at his trade as a baker in a hot bread shop at Terrigal. We spoke together and he indicated to me that he wanted to get back into security work. [The employee] attended at the BCA offices on 23 August, 2001, to the best of my recollection the following conversation took place:-

I said:-

"Give me a look at your licences".

He said:-

"OK".

He showed me and Craig Whitby his plastic firearms licence category H and his security licence Category 1 A, B and C neither of which had expired.

[The employee] continued to say:-

"My annual accreditation is in order and I've got a safe at home and also an off duty permit".

I said:-

"Would you fill out this form".

[The employee] filled out the application form, signed it and handed it back to me and Craig Whitby also signed the form. A copy of the employment form signed by [the employee] and by Craig Whitby is annexed and marked "A".

[The employee] started working for BCA on 14 December, 2001, although after the interview on 23 August, 2001 and before December, 2001, [the employee] did do some work for us as a temporary static guard without being armed. From 14 December, 2001 [the employee] was employed as an armed patrolman in the Erina area. ... His duties were driving around checking various business premises. He always worked on his own although there was always backup available.

Just prior to [the employee's] death, he was working for BCA 3 (three) days a week for a total of about 36 - 38 hours a week. The number of hours that he worked per week depended on the type of shifts that he was doing. His wages were worked out on the basis of $16.00 per hour, his total wage would depend on how many hours he worked. His pay was automatically deposited into his bank account weekly. I was never contacted by [the employee] about him wanting to work extra shifts.

A firearm was issued to [the employee] on 14 December, 2001. [The employee] signed the register of firearms and ammunition book, entry number 228332 on 14 December, 2001. I also endorsed the entry verifying that he had received the firearm. The firearm that he was issued was a .357 magnum 6 shot silver ruger serial number 15517:201. The weapon had a black rubber grip and a 4" barrel. The firearm was owned by BCA. I told [the employee] to attend at our office again for a resigning out of the weapon on 27 December, 2001.

[The employee] attended at our office for a resigning out of the weapon on 27 December, 2001. The weapon was signed in by me on this date at 0600 hours. I inserted the wrong date and time, namely 5/01/02 at 1805 instead of 27/12/01 at 0600. [The employee] signed the register of firearms on page number 228333 on 27 December, 2001, that is he signed out the weapon and I counter signed as usual. ...

At no time, either when I interviewed [the employee] or during the course of his employment with BCA, did he ever give any indication to me that he was depressed or that anything was troubling him. On Monday 7 January, 2002 I met [the employee] during one of his shifts and he looked and sounded fine. I tried to telephone him on Thursday 10 January, 2002 to find out why he hadn't turned up for work but his phone was switched off. I made some enquiries and spoke to my partner Mr Craig Whitby who was holidaying in Queensland. Craig Whitby telephoned Gosford Police and was informed that [the employee] had died on 9 January, 2002.

When I was informed of [the employee's] death I was extremely upset. I have suffered a great deal of distress and anxiety as a result of the death of [the employee] apart from the problems that have arisen due to the suspension of my firearms licence. From the time that both my licence was originally suspended and the master licence of my partner Craig Whitby was also suspended, the business was not able to operate during this period. The master licence was reinstated in February, 2003. Both myself and my partner Craig Whitby made a huge financial loss during the period and we are still suffering from that loss. I had to borrow from friends and family an amount of approximately Eight thousand dollars ($8,000.00) in order to live and survive during this period. I am still trying to repay the debt.

I have lived on the Central Coast for in excess of 30 (thirty) years. I am a keen game fisherman and am a member and past President of Wyong Bowling Club/Fishing Club. I believe that as a result of my community and business activities, I have gained an excellent reputation in the industry in the eyes of customers and of competitors. I have worked closely with the local police on the Central Coast in that I have assisted the police in opening safes and have also arrested offenders, both myself and with the help of other patrolmen and have handed those offenders over to the police.

As far as I am aware the date for my annual accreditation is in July each year and I usually arrange for my accreditation certificate within 12 months of the last re-accreditation. I attach a copy of my accreditation certificate dated 30 July, 1996 and also my certificate dated 8 July, 1998. ... I cannot locate my re-accreditation certificate for 1999. In 2000 I re-accredited on 9 August, 2000 ... My brother committed suicide on 26 June, 2000 at Hervey Bay in Queensland. I and my elder brother travelled to Queensland to arrange to transport the body by air back to Port Macquarie where my brother was to be cremated. The body reached Port Macquarie on 1 July, 2000 and he was cremated on 4 July, 2000. It was a difficult and stressful time for me and my family. I did not seek my accreditation when I should have due to this event. I did not in fact leave my family in Port Macquarie until about 2 (two) weeks after the funeral. I have re-accredited annually on time since that time.

As a result of this experience, I intend in the future, to be very careful in sighting employees' licences, re-accreditation certificates, off duty permits and home sales. I with my partner Craig Whitby have set up procedures to make sure this is done. In particular, we intend to insist on the employees consenting to us inspecting their home safe. We then intend to inspect the safe. We intend also to record re-accreditation dates for ourselves and the employees and sight re-accreditation certificates prior to continuing to employ our employees.

I trusted [the employee] when he told me that he had the necessary accreditation and when he told me that he had an off duty permit and a safe. I knew from my past association with him that he was a competent security guard and that he had previously worked as an armed security guard.

I will never forget this incident and will always personally and carefully check for licences, re-accreditation certificates and home safes for my future employees. I am a person of good character and believe that I am fit to hold a firearm's licence and request the Tribunal to overturn the decision of the New South Police Service."

22 Mr. McVerry's oral evidence was consistent with the information provided in his affidavit.

23 Mr Hewson submitted on Mr. McVerry's behalf that the event which lead to charges being brought against Mr. McVerry were not serious enough to warrant disqualification. He argued that Mr. McVerry is engaged in an industry in which he had seen the employee engaged by another security firm. The employee's licence was sighted but his accreditation was not sighted. Mr. McVerry took the employee at his word and had him sign documentation regarding his accreditation and the terms of his employment. The employee assured Mr. McVerry that he had a gun safe.

24 Mr Hewson submitted that this is not a situation where Mr. McVerry permitted a firearm to be issued to a person who was never accredited. He argued that there is no evidence to suggest that he didn't keep the firearm away from the public. BCA has now adopted processes that will ensure that there will be complete compliance with the legislative requirements in the future.

25 In his submission, the public is best served by having someone with Mr. McVerry's decision and ability and who has learned from his mistakes. He has been affected both emotionally and financially by his experience.

26 Mr. Hewson referred to the decision of this Tribunal in the matter of Yaghi-v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 91 where the Judicial Member considered the issue of public interest as a basis for revocation of a licence. Judicial Member Lees stated:

"31 The power to revoke under s 24(2)(d) and cl 17 relating to public interest is not a mandatory power requiring revocation upon certain criteria being met, for example 'if X offence is committed by the licensee, it is not in the public interest for the licensee to continue to hold the licence'. Rather, it is a discretionary power and one for which the Act provides no express guidance as to its exercise.

32 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. It is suggested in another Tribunal decision concerning the Act that there may be a trivial or excusable contravention or breach which may not warrant the exercise of the discretion against a licensee, whereas a fundamental breach may (see Cusumano v. Commissioner of Police, New South Wales Police Service [2001] NSWADT 50 at para 25).

33 The High Court has considered the expression 'in the public interest' in a number of matters in different statutory contexts. In O'Sullivan v. Farrer [1989] HCA 61; (1989) 168 CLR 210, Mason CJ, Brennan J, Dawson J, and Gaudron J state at p 216 in a joint judgement, that

Where a power to decide is conferred by statute, a general discretion, confined only by the scope and purposes of the legislation will ordinarily be implied if the context (including the subject-matter to be decided) provides no positive indication of the considerations by reference to which a decision is to be made'.....

The expression "in the public interest", when used in a statute, classically imports 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 statutory enactments may enable ..." .....

34 The Australian Industrial Relations Commission stated in Comalco at p 681

'....The purpose of the reference to "public interest" is to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the Commissioner's consideration The effect of the reference is to amplify the "scope and purpose" of the legislation."

35 The Tribunal's Appeal Panel considered the exercise of the public interest discretion in a security industry licencing matter in Commissioner of Police v Toleafoa ([1999] NSWADTAP 9. It stated (at p 25) that the public interest is

'. . . an inherently broad concept giving the [decision maker] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual....'.

36 The Deputy President of the Tribunal found that these comments apply equally to the Firearms legislation

(see Ward -v- Commissioner of Police [2000] NSWADT 28 at para 33).

37 Accordingly, the relevant public interest considerations in a matter such as Mr Yaghi's depend on both the circumstances giving rise to the matter and the scope and objects of the Act."

27 Mr. Hewson submitted that views expressed in the matter of Yaghi are applicable to this matter. He argued that while the circumstances of this matter are not trivial, they do not compromise the public interest.

28 He also referred to the decision of the Deputy President of this Tribunal in the matter of Wilkinson -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 59 where she found that the circumstances of the matter did not compromise the public interest. The Deputy President stated at paragraphs 35-36:

"35 Public interest. The Appeal Panel of this Tribunal considered the meaning of "public interest" in the context of the Security Industry Act, in Commissioner of Police v Toleafoa ([1999] NSWADTAP 9 at 25). In that case the Appeal Panel stated that the public interest is:

. . . an inherently broad concept giving the appellant 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.

36 The evidence establishes that Mr Wilkinson failed to store his firearms safely at a time when he was suffering from depression. There is no public interest in revoking his licence in circumstances where he has recovered from that illness and there is no evidence that he may suffer similar episodes of depression at some time in the future."

29 Mr. Hewson further submitted that the passage of time without further incident allows credit and that the Tribunal could have confidence that Mr. McVerry can be trusted. He referred to the decisions of the Deputy President of this Tribunal in the matters of Cleofe -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 2 and Pantle-v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 207 in support of that submission. He argued that this is a matter where the Tribunal's discretion should be exercised in Mr. McVerry's favour.

The Commissioner's case

30 The Police Service's file was put in evidence and the Commissioner relied on the documents contained within that file. The Commissioner's case is essentially that outlined in the reasons provided following the internal review. With the exception of the particular circumstances of the case, there is no general suggestion that Mr. McVerry is not a person of good character. However, the Commissioner argues that there is a public interest issue to be considered and that the interest of public safety must outweigh any personal interests that Mr. McVerry might have in possessing his firearms licence. As the person in charge of BCA's business, Mr. McVerry has a greater responsibility to the public to ensure that the use of firearms is in accordance with the legislative requirements. The Commissioner has concerns about Mr. McVerry being the holder of a firearms licence due to his failure to comply with those requirements.

31 Mr. Capper, for the Commissioner, conceded that Mr. McVerry is a person of good character and also concedes that no conviction was recorded against Mr. McVerry in relation to the breach of the storage requirements. However he argued that there are numerous cases which refer to the intention of the legislation in considering whether it is in the public interest that an individual hold a licence. Draconian legislation has been introduced to stop weapons coming into the hands of persons who are not authorised to have them. Exceptions have been made in the case of security guards. It is the responsibility of the employer to ensure that the firearms are issued and kept in accordance with the legislative requirements and that proper records are kept.

32 Mr. Capper submitted that Mr. McVerry has failed to ensure that the firearm was not issued to an authorised person and has failed to ensure the safe storage of the firearm. He failed to make reasonable enquires to ensure that the employee held the appropriate authority. He also failed to ensure that the employee had appropriate facilities for off duty storage of the firearm. Mr. Capper further submitted that the form that BCA used is inadequate in that it fails to require copies of relevant authorities and makes no reference to off duty permits. It was imperative that Mr. McVerry made any further inquiries but there is nothing to suggest that Mr. McVerry went any further. If the employee failed to provide relevant information, Mr. McVerry could have obtained it from the firearms registry. He did not do so but he merely took the employee at his word.

33 Mr. Capper urged the Tribunal to draw an adverse view in regard to the discrepancies in the Register of Transfer of Firearms and Ammunition entries. He argued that these had been completed in advance in anticipation of what should have happened. At best it shows poor record keeping. At worst it is fraudulent.

34 The Internal Review Reasons on which the Commissioner relies provided in part:

D. REASONING PROCESS:

The Firearms Act 1996 ('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. I have formed the view that the legislative provisions listed above are relevant to your particular case. Further, I have noted the abovementioned issues raised by you in support of your application.

After fully and independently considering all relevant matters I make the following fresh determination.

In 1996, the government enacted "tough new gun laws" 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 of firearms.

In considering your request to have your licence reinstated I have taken into account the submissions of your solicitor and the facts surrounding the firearms offences. I have weighed these issues against the 'public safety' scope of the Act and I have formed the view that your actions were contrary to the principles of the Act. As such, I believe that you have forfeited the privilege of having access to firearms.

The following are the facts surrounding the incident, which led to the revocation of your individual firearms licence. On 23 August 2001, whilst you held the position of Director and proprietor of a security business, BCA Security Services, an employment application was received from [the employee]. [The employee] signed a security operative contract agreement with your business on 14 December 2001 and he was given a company issued .357 six shot ruger revolver This was despite the fact that [the employee] did not hold current firearms safety training accreditation ('accreditation') for his category H firearms licence.

Between that day and 9 January 2002, BCA Security Services' Register of Transfer of Firearms and Ammunition ('Register') records indicate that [the employee] retained possession of that pistol during periods when he was off-duty. However, [the employee] did not hold an off duty pistol permit, authorising him to possess his firearm at home, while off duty.

On 9 January 2002, when following a domestic dispute at his home, [the employee] used that pistol to commit suicide.

As an employer of security guards it is your responsibility, firstly, under Clause 63(2) of the Firearms (General) Regulation 1997 ('Regulations') to ensure that all employees are licensed and secondly, under Clause 69 (3)(a) of the Regulations that they hold current accreditation. Your employee, [the employee] was the holder of a current category H licence issued for the purpose of employment as a security guard. A firearms licence of this type is only valid while the licence holder' s accreditation is current. [The employee's] accreditation expired on 9 December 1998, three years prior to his employment with your company. It is my understanding that you were the person responsible for employing and subsequently issuing a firearm to [the employee] on behalf of BCA Security Services. It is also my understanding that you did not uphold your responsibility to ensure that [the employee] held a current accreditation and nor did you satisfy yourself that [the employee] held a current permit that would authorise him to possess a company issued firearm whilst he was off-duty.

Another responsibility of an employer of security guards is to ensure that a register is maintained to accurately record the periods for which each employee has possession of firearms. Employees are not authorised to retain possession of company issued firearms while off duty.

On 14 December 2001, the same day that [the employee] signed his employment contract with your business, he was given a company issued six shot revolver. You recorded t. he issuing details in your business' Register, as required. Further reference to the Register suggests that [the employee] has then been allowed to have unlimited possession of that pistol including periods when he was off duty. Although, there has been some suggestion that you attempted to phone [the employee] regarding this issue.

It is evident from your actions that you have not only allowed an employee unauthorised possession of a company issued firearm but that you failed to ensure an appropriate entry was made in the Register.

Clause 67(3)(d) is specific in stating that an employer must ensure that an appropriate entry is made in the register when any firearm (and any ammunition for the firearm) is transferred from the employer's store of firearms to the custody of an employee and when the firearm and ammunition is returned to the store of firearms. In my view, your negligence in ensuring that an accurate and strict record of your employee's use and possession of the pistols owned by your business was maintained, does not indicate strict and diligent compliance with the conditions upon which your licence was issued or with the principals of the Act.

In addition, records maintained by the Firearms Registry indicate that your own individual category H firearms licence was not valid for a considerable period of time prior to the incident involving [the employee]. You had not submitted an accreditation certificate to prove that you had undertaken the necessary training, as is specified as a condition upon which your licence was issued. During the period of 6 July 2000 to 23 August 2001 you were not authorised to use or possess firearms.

In my view, this contravention of the conditions upon which your individual licence was issued and your failure to uphold responsibilities as an employer, is the type of behaviour that does not suggest that you hold an attitude that is conducive to responsible firearms ownership. Moreover, I am of the opinion that you have been extremely careless and indifferent in ensuring compliance under the Act, both as an employer and as an individual firearms licence holder.

I have considered your solicitor's submissions that you pleaded guilty to the charges brought against you. Further, I have given substantial consideration to the findings, upon appeal, of the District Court in quashing the convictions imposed upon you by the Local Court. Notwithstanding this, I remain satisfied that you pleaded guilty to what are considered serious firearms offences which in turn raises doubt as to whether or not you can be trusted in the future to uphold your responsibilities as a licensee.

I have also given substantial consideration to your solicitor's submissions that you were aware that [the employee] had previously worked in the security industry; that you had sighted his category H licence and that you were advised by [the employee], both orally and in writing, that his accreditation was current and that he had a permit to authorise possession of a pistol whilst off duty. However, there has been no explanation offered as to why you did not sight proof of these documents. As such, it can only be assumed that you chose to disregard your responsibilities and ignore these basic safety requirements of the Act.

As a result of your negligence, you have placed the public at considerable risk and a tragedy has occurred. Where there has been, or is, a possibility of a threat to the public's safety, the public's fight to safety must outweigh an individual's privilege to possess and use a firearm.

In addition, in the Second Reading speech on 25 June 1996 relating to the Act The Hon Mr J W Shaw (Attorney General) said, (at 3557): "The legislation puts the public's right to safety before the privilege of gun ownership."

I have given considerable weight to your previous good record and your cooperation with the police. Further, I concede that you have suffered personal distress arising from [the employee's] death in these circumstances. I have noted the references provided in your support and your solicitor's submissions that you have, in the past, assisted the local police in regards to locksmith duties. I have also noted that you have lived on the Central Coast in excess of 30 years. As such, your character is not in question.

However, the issue of public interest is operated in the absence of character defects with respect to exercising discretion adversely to an individual. I refer to Tolefoa v COP (2000) NSWADT 9, which provides:

"(Public interest) is an inherently broad concept giving the appellant 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 the public interest discretion to 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 objection."

I have considered that you hold your firearms licence for the genuine reason of employment as a security guard; that you have been involved in the security industry for a long period of time and that the loss of your firearms licence may cause financial or personal hardship. However, I am of the view that as a Director of a security company, which relies on the use of firearms in the operation of your business, you should have ensured strict control over your business' firearms. In addition, it is my view that you should have ensured strict compliance with the conditions of your individual licence, at all times.

The need for you to retain your firearms licence is subordinate to the need to ensure public safety; Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 at 681, provides:

"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."

As quoted in the Firearm Bill Second Reading speech the underlying principles and aims of the Firearms Act 1996 are to confirm firearm possession and use is a privilege conditional on the over riding need to ensure public safety by imposing strict controls.

Due to your failure to uphold, what are onerous responsibilities, that were placed upon you as an employer of security guards using firearms, I am satisfied that the public would view your actions in allowing an unauthorised person unlimited possession of your company's firearm, as a serious and direct contradiction of the principles and aims of the Act. Further to this and with respect to your individual firearms licence, the fact that your own accreditation was not undertaken while you were presumably still handling firearms, would suggest that you cannot be trusted to uphold the conditions upon which your individual licence was issued, with the diligence expected. On balance, I cannot, with any confidence, be satisfied that should your individual licence be returned to you, a further lapse would not occur in the future.

35 Mr. Capper referred to a test set out in the decisions of the Tribunal's Deputy President in Phegan v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 127 and he argued that that test is appropriate to the circumstances of this matter. Phegan provides that, prima facie, if there is a breach of the storage requirements of the legislation, a licensee will lose their licence unless they can show some good reason why that should not be the case. 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. Mr Capper argued that Mr. McVerry has not satisfied that test. There is nothing in the circumstances of this matter that would take it outside the ordinary case. The Tribunal must be satisfied that Mr. McVerry would pose virtually no risk to public safety if he had access to firearms. Mr Capper argued that The Tribunal could not be so satisfied.

Nature of proceedings

36 Mr Capper made reference to the decision of the Deputy President in the matter of Phegan. He submitted that Phegan is authority for the principle that for the Tribunal to set aside a revocation decision of this kind an applicant must show that there are persuasive and relevant considerations that take their matter outside the ordinary case. I considered this argument in some detail in my reasons for decision in the matter of Hart -v- Commissioner of Police, New South Wales Police Service [2003] NSWADT. I do not propose to repeat that analysis here, however in Hart I expressed the view that these are not adversarial proceedings in which Mr McVerry carries an onus of proof.

37 Mr McVerry does not take on the responsibility of having to prove a case, nor does he cause the Commissioner to have to prove a case. Mr McVerry and the Commissioner are before the Tribunal as parties by virtue of section 67(2) of the ADT Act. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the Commissioner's decision is correct.

38 The subject matter of Mr McVerry's contravention is a highly relevant consideration. I must consider all relevant circumstances but since breaches of the obligations imposed on an employer of security guards in relation to the issue and storage of firearms and the keeping of records associated with the use of those firearms erode the protection of public safety, there would need to be other persuasive considerations before I would be prepared to set aside the Commissioner's decision.

Findings Generally

39 In this application, I have considered all of the evidence and the oral argument presented before the Tribunal. In particular I have reached the following findings of fact:

· Mr. McVerry is a proprietor and director of BCA;

· Mr. McVerry is a keen game fisherman and a member and past president of Wyong Bowling and Fishing Club;

· Mr. McVerry was issued with a category H firearms licence for the genuine reason of employment as a security guard on 20 October 1997;

· Mr. McVerry's firearms licence was suspended on 18 July 2002 and revoked on 20 September 2002;

· on 19 July 2002 Mr. McVerry was convicted in Gosford Local Court of the offences of 'employer allow unauthorised person to possess/use firearm' and 'employer fail to ensure compliance with s69(2) by employees';

· an appeal to the Gosford District Court was upheld on 30 September 2002. The offences were found proved but dismissed under section 10 of the Crimes (Sentencing Procedures) Act 1999 without proceeding to a conviction;

· on 14 December 2001 Mr. McVerry employed the employee as a security guard with BCA's business;

· at 5pm on 14 December 2001 Mr. McVerry issued a .357 six shot Ruger revolver to the employee. An entry was made in the Register of Transfer of Firearms and Ammunition at 1800 hours on 27 December 2001 indicating the firearm was issued to the employee. Mr. McVerry signed the register indicating that the firearm was returned at 1805 hours on 5 January 2002. A further entry was made at 1840 hours on 5 January 2002 and signed by Mr. McVerry, indicating the return of the firearm issued to the employee. This entry was not signed by the employee;

· the employee's firearms training accreditation expired on 10 December 1998;

· the employee was not the holder of a permit authorising him to retain a firearm while off duty;

· Mr. McVerry has suffered personal distress because of the death of the employee;

· Mr. McVerry has no prior criminal history or adverse firearms history;

· if his licence is restored Mr. McVerry intends to comply with the legislative requirements in regard to the issue and storage of firearms and the employment of security guards.

40 The principal issue that I have to decide is whether there is a risk to the safety of the public if Mr. McVerry's licence is reinstated. Before a licence is issued, the Commissioner must conclude that there is virtually no risk to the public associated with the issue of the licence. The likelihood of risk must be assessed by reference to the Applicant's prior conduct. In Mr. McVerry's case, there is a long history that is incident free, which is overshadowed by the incidents of failure to comply with the legislative requirements that lead to these proceedings.

41 Mr. McVerry has breached certain provisions of the Act even though he was not convicted of those offences. Against this must be weighed his undertaking as to future conduct.

42 One of the underlying principles of the Act is the improvement of public safety by imposing strict controls on the possession and use of firearms. It is clear from the legislation that Parliament has identified this issue as a central and critical objective of the legislation. Mr. McVerry's conduct must be viewed with reference to the principles and objects of the Act.

43 As an employer of security guards it is Mr. McVerry's responsibility to ensure that all employees are licensed and that they hold current accreditation. The employee was the holder of a current category H licence issued for the purpose of employment as a security guard. A firearms licence of this type is only valid while the licence holder' s accreditation is current. The employee's accreditation expired three years prior to his employment with BCA. Mr. McVerry was responsible for employing and subsequently issuing a firearm to the employee. He did not uphold his responsibility to ensure that the employee held a current accreditation and nor did he satisfy himself that the employee held a current permit that would authorise him to possess a company issued firearm whilst he was off-duty.

44 Another responsibility of an employer of security guards is to ensure that a register is maintained to accurately record the periods for which each employee has possession of firearms. Employees are not authorised to retain possession of company issued firearms while off duty.

45 The evidence shows that Mr. McVerry has failed to ensure that the firearm was not issued to an authorised person and has failed to ensure the safe storage of the firearm. He failed to make reasonable enquires to ensure that the employee held the appropriate authority. He also failed to ensure that the employee had appropriate facilities for off duty storage of the firearm. It was imperative that Mr. McVerry made further inquiries to obtain the relevant information.

46 On the evidence I am satisfied that Mr. McVerry was not diligent in his approach to ensuring that the legislative requirements imposed on an employer of security guards were followed. He adopted a relatively casual approach to checking that employees were appropriately accredited preferring, to rely on the information provided by the employee rather than carrying out his own inquiries. He was also less than diligent in the maintenance of the Register of Transfer of Firearms and Ammunition.

47 In this case it could not be said that Mr. McVerry has acted in complete disregard of the statutory requirements. He has clearly taken steps to obtain a licence and to make some effort to check potential employee's credentials. He has also made efforts to maintain the Register of Transfer of Firearms and Ammunition. His evidence is that the discrepancy in the register was an administrative error. I have no reason to doubt this evidence but it nevertheless shows poor record keeping and a lack of attention to detail.

48 Further, the fact remains that Mr McVerry was found guilty of offences of allowing an unauthorised person to possess/use a firearm and of failing to ensure that the employee complied with clause 69(2) of the Firearms (General) Regulation 1997. The fact that Mr McVerry has adopted new procedures which will ensure that this situation will not be repeated does not diminish the gravity of that fact.

49 Responsibilities extended to an employer of security guards are of a serious nature and the employer must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them. Similarly, onerous responsibilities are placed on a firearms licensee. On the evidence presented I accept it is probable that Mr McVerry was aware of the statutory obligations but I am not convinced that he fully appreciates the importance of strict observance of those obligations. Mr McVerry's actions reflect a casual attitude towards firearms that is out of step with the principles and objects of the Act.

50 I have noted the factors to which Mr. McVerry has referred. I have no reason to doubt that he has suffered a great deal both emotionally and financially as a result of this incident. I also accept that Mr. McVerry has good intentions as to his future conduct

51 Having weighed the evidence, it is my view that that the gravity of the casual approach that Mr McVerry had adopted outweighs the other relevant factors. While over a year and a half has passed since the incident that lead to these proceedings occurred, I cannot as yet be satisfied that sufficient time has passed since that incident for the public to be comfortable with Mr. McVerry holding a firearms licence. It follows in my view that the correct and preferable decision is to revoke Mr. McVerry's firearms licence. Accordingly I affirm the Commissioner's decision.

Orders

The Commissioner's decision to revoke Mr. McVerry's Category H firearms licence is affirmed.