Irvin v Commissioner of Police, New South Wales Police Service [2003] NSWADT 39 (4 March 2003)

Last Updated: 13 June 2003

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Irvin -v- Commissioner of Police, New South Wales Police Service [2003] NSWADT 39

PARTIES: APPLICANT

Brian Irvin

RESPONDENT

Commissioner of Police, New South Wales Police Service

FILE NUMBERS: 023242

HEARING DATES: 13 January 2002

SUBMISSIONS CLOSED: 13/01/2003

DECISION DATE: 04/03/2003

BEFORE: Conley J - Judicial Member

LEGISLATION CITED: Firearms Act 1996

Administrative Decisions Tribunal Act 1997

Crimes (Sentencing Procedure) Act 1999

CASES CITED: Hocking v Commissioner of Police, New South Wales Police Service [2002]NSWADT 214

May v Commissioner of Police, New South Wales Police Service [2001] NSWADT 82

Phegan v Commissioner of Police, New South Wales Police Service [2002] NSW ADT 127

APPLICATION: Firearms licence - revocation of licence or permit

MATTER FOR DECISION: Principal

APPLICANT REPRESENTATIVE: APPLICANT

In person

RESPONDENT REPRESENTATIVE: RESPONDENT

J Tunks, Solicitor

ORDERS: The Commissioner's decision to revoke Mr Irvin's category ABC licence is affirmed.

Reasons for Decision:

Introduction

1 On 11 August 2002 the Commissioner of Police (the Commissioner) revoked Mr Irvin's Category A and B and C firearms licences. These licences enabled Mr Irvin to engage in vermin control both on his property and professionally. The reason for the revocation was that Mr Irvin had been found guilty of an offence of not keeping a firearm safely. On 23 October 2002, Mr Irvin applied to the Tribunal for a review of that decision.

Jurisdiction

2 The Tribunal has jurisdiction to determine this matter pursuant to s 75(1)(c) of the Firearms Act 1996 (Firearms Act) and s 38 of the Administrative Decisions Tribunal Act 1997 (ADT Act).

Evidence

3 There was no dispute Mr Irvin had not stored firearms and ammunition in accordance with the storage requirements of the Firearms Act.

4 Mr Irvin gave evidence that he currently runs an agricultural enterprise comprising both livestock and crops on land of approximately 160 acres. He also has a small farm in Tucki Tucki. A firearms licence is essential on a property of this size for the control of vermin. He also undertakes professional vermin control.

5 Mr Irvin gave evidence, by way of background, that he had applied for a Category H Firearms Licence in 1997. He was intending to relocate for work purposes to the Northern Territory where he would take up employment mustering cattle from a helicopter. He needed a pistol to destroy injured cattle and also for personal protection against feral animals. Mr Irvin wanted to purchase a pistol in readiness for this employment. To this end he applied for the category H licence. The Commissioner found that he had not demonstrated the need for such a licence in New South Wales and the application was not granted.

6 Mr Irvin subsequently moved to the Northern Territory where he worked in the capacity described above. He held a licence for a pistol in the Northern Territory and purchased a Glock pistol model 22, S & W 40.

7 When Mr Irvin returned to NSW he left the pistol in the Northern Territory in the care of an agent for the purpose of selling it. After some time it became clear it would be difficult to sell. The pistol was sent to Mr Irvin and he took the pistol to a Lismore dealer. As the price offered by the Lismore dealer was well below the purchase price, Mr Irvin then took the pistol to a dealer in Casino where it was left for sale. After some time that dealer advised that as it was not a popular make of hand gun, it had proved difficult to sell.

8 Mr Irvin gave evidence that he needed money so he decided he would take the pistol back to the dealer in Lismore and accept the initial offer. He stated he collected the pistol on a Friday in April 2001, with the intention of taking it to the Lismore dealer the following Monday. Mr Irvin was very unclear as to dates, however he gave otherwise clear evidence as to what occurred after collecting the pistol from Lismore.

9 Upon returning to his property at Tucki Tucki he placed the pistol in a small safe the size of a shoe box in the wardrobe in his bedroom. The safe was buried amongst clothes and was not bolted to the floor or wall. The ammunition was placed in a sock in a drawer close by. Mr Irvin stated that he did have a safe which complied with the legislative requirements, however he chose not to store the hand-gun in that safe. The reason given for this was that having the pistol in the safe in the wardrobe would serve as a reminder to take the pistol to the Lismore dealer.

10 Mr Irvin gave evidence that he was called away urgently for work in the Riverina where aside from his agricultural enterprise he was also proposing to drive trucks. He and his family left the Tucki Tucki property the next day being a Saturday. A friend was left in charge of the care of the property. The friend rang on what Mr Irvin thought was probably the following evening, being Sunday night, to advise there had been a break in and goods stolen. When it was confirmed the pistol had been stolen Mr Irvin notified the police immediately.

11 On 2 September 2001, the Local Court convicted Mr Irvin of "not keep firearm safely", "possess ammunition w/o holding license/permit" and "possess unauthorised firearm-Pistol". On appeal to the District Court the Conviction for "not Keep firearm safely-Pistol" was confirmed and pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 no conviction was recorded for the other two offences.

12 Mr Irvin submitted a number character references. Of particular relevance are the references of retired Senior Supervising Sergeant R.E. Maher, Andrew Patterson and Les Irvin. These references not only attest to Mr Irvin's good character but also his professional manner in respect of the handling of firearms.

13 The Commissioner relies upon the facts that the firearm was not stored in accordance with the provisions of the Firearms Act, and the conviction for the offence "Not keep firearm safely".

Relevant legislation

14 The Firearms Act sets up a scheme for licensing people to possess and use firearms. Section 3 sets out the principles and objects of the 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:

...

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

15 Part 4 of the Firearms Act deals with Safe keeping of firearms. Section 39 deals with "General Requirements".

(1) A person who possess 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...

16 Section 41 prescribes the keeping of Category C, D and H firearms.

(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 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 ...

17 Section 24(2) sets out some of the grounds on which the Commissioner may revoke a licence. The Commissioner relied on a single ground in this case, namely s 24(2)(b)(ii). That provision states that:

A licence may be revoked if the licensee contravenes any provision of this Act or the regulations, whether or not the

licensee has been convicted of an offence for the contravention.

Submissions

18 Mr Irvin told the Tribunal that while he admitted that he had breached the legislation, he did not deliberately intend to do so. He had attempted to do the right thing at all times. He had only intended to have the firearm in his house briefly prior to taking it to the dealer.

19 Mr Irvin submitted he would suffer financial hardship as a result of the loss of a firearms licence. He has a large agricultural enterprise which he is currently considering expanding. Vermin control and killing sick stock is essential to the management of the business.

20 The Commissioner submitted that the correct and preferable decision had been made in revoking Mr Irvin's firearms licence having regard to the provisions of section 24(2)(b)(ii). This section provides a licence may be revoked if the licensee contravenes any provision of the Act or Regulations whether or not there is a conviction for an offence for the contravention. Section 39 of the Act creates an offence for not keeping a firearm safely. Section 41 prescribes the safe keeping of category H firearms such as Mr Irvin's Glock pistol. Mr Irvin had not complied with the requirements of section 41 in respect of the safe keeping of a firearm and had been convicted of such offence.

21 It is conceded Mr Irvin has no prior criminal record and is otherwise of good character. It was further conceded that he was contrite in respect of his actions in not keeping the firearm safely.

22 It was submitted that while Mr Irvin's submission that the loss of a firearms licence would result in financial hardship was relevant, it should be a secondary consideration to public safety. Reference was made to Hocking v Commissioner of Police, New South Wales Police Service [2002] NSWADT 214 and May v Commissioner of Police, New South Wales Police Service [2001] NSWADT 82 where the Tribunal found that financial considerations were secondary to that of public safety.

Issue

23 The issue for the Tribunal to determine is whether the Commissioner made the correct and preferable decision in revoking Mr Irvin's firearms licences on the ground that he has been found guilty of an offence relating to the storage of firearms. Under s 63 of the ADT Act, the Tribunal must take into account any relevant factual material and any applicable written or unwritten law. The Tribunal may then affirm, vary or set aside the Commissioner's decision.

Decision and reasons

24 Mr Irvin breached certain provisions of the Firearms Act in relation to storage. Part 4 of the Firearms Act provides for the safekeeping of firearms. The general requirements are set out in s 39 which 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.

25 The Firearms Act does not list the factors which a decision maker must take into account when deciding whether to revoke a person's licence. In those circumstances the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act.

26 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. 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 imposed detailed requirements on all licensees.

27 In Phegan v Commissioner of Police, New South Wales Police Service [2002] NSW ADT 127 Deputy President Hennnessy considered the cases in which the Tribunal has reviewed decisions of the Commissioner where a firearm licence has been revoked because of failure to comply with the storage requirements of the Firearms Act. In summary the Tribunal found that those decisions "make it clear that 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 which take their matter outside the ordinary case."

28 Any financial hardship suffered by Mr Irvin must be weighed against public safety. Mr Irvin failed to store firearms and ammunition safely in a situation which led to the theft of that firearm. As a result of those actions that firearm is now in the hands of the criminal element. 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. There was nothing in the evidence given by Mr Irvin to establish that this matter was outside the ordinary case. The reason given as to why the firearm was not stored in accordance with the legislative requirements was so to remind to Mr Irvin to take the firearm to a dealer for sale. Having a firearm inadequately stored to serve as an aide memoire is simply not an acceptable explanation, nor is it the responsible act of a firearms owner. There are no extenuating circumstances in this case which would justify the Tribunal setting aside the Commissioner's decision to revoke Mr Irvin's licence.

29 For the reasons set out above, the Commissioner's decision to revoke the licences is affirmed.