Rosenboom v Commissioner of Police, New South Wales Police [2006] NSWADT 10 (9 January 2006)

Last Updated: 23 January 2006

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Rosenboom v Commissioner of Police, New South Wales Police [2006] NSWADT 10


PARTIES: APPLICANT
Peter Rosenboom
RESPONDENT
Commissioner of Police, New South Wales Police



FILE NUMBERS: 053173

HEARING DATES: 05/09/05

SUBMISSIONS CLOSED: 05/09/2005



DECISION DATE: 09/01/2006

BEFORE: Montgomery S - Judicial Member





LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Firearms (General) Regulation 1997
Firearms Act 1996

CASES CITED: Bazouni & Ors -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 100
Bevan v The Commissioner of Police [2004] NSWADT 1
Cleofe v The Commissioner of Police [2001] NSWADT 2
Cook v The Commissioner of Police [2003] NSWADT 30
Cottrel v Commissioner of Police, New South Wales Police Service [2004] 244
Hart -v- Commissioner of Police, New South Wales Police Service [2003] NSW ADT 114
McVerry v Commissioner of Police, New South Wales Police Service [2003] NSWADT 179
Morris v The Commissioner of Police [2002] NSWADT 223
Pantle v Commissioner of Police [2001] NSWADT 207
Uzelac v Commissioner of Police, Ministry of Police [2003] NSWADT 226
Walker v The Commissioner of Police [2002] NSWADT 225
Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110
Wilkinson v Commissioner of Police [2002] NSWADT 59

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
G Rigon, solicitor

RESPONDENT REPRESENTATIVE: RESPONDENT
W Pisani, agent

ORDERS: The decision under review is affirmed.


Reasons for Decision:

REASONS FOR DECISION

1 Mr Rosenboom is 44 years of age from a farming background, now self-employed as an electrician. He has been a recreational shooter since his youth and held a Category ABC firearms licence under the Firearms Act 1996 ("the Act"). He has participated in sporting shooting at an elite level, including the NSW representative clay target shooting team, and is a member of a number of sporting shooting associations. Mr Rosenboom’s licence was revoked for contravention of the Act and licence conditions.

2 The factual bases of the decision are not substantially traversed. The Commissioner’s brief contains material prepared in relation to the circumstances of the death of Mr Rosenboom’s son. It contains numerous statements from police officers with knowledge of the incident and from Mr Rosenboom’s wife and daughter. The circumstances of this matter provide a tragic example of the consequences of the misuse of firearms.

Applicable Law

3 The Commissioner’s power to revoke a firearm’s licence is found in section 24 of the Act. Section 24(2)(b)(ii) of the Act provides that the Commissioner may revoke a firearms licence if the licensee contravenes any provision of the Act or the Firearms (General) Regulation 1997 ("the Regulations"), whether or not the licensee has been convicted of an offence for the contravention.

4 Section 24(2)(b)(iii) of the Act provides that the Commissioner of Police may revoke a firearms licence if the licensee contravenes any condition of the licence.

5 Section 39 of the Act provides that a person who possesses a firearm must take all reasonable precautions to ensure its safe keeping, and that it is not stolen or lost, and that it does not come into the possession of a person who is not authorised to possess the firearm.

6 Clause 17 of the Regulation provides that 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.

7 It is not disputed that Mr Rosenboom contravened section 39 of the Act. Nor is it disputed that section 19(2)(a) of the Act imposes a requirement to comply with the relevant safe keeping and storage requirements as a condition of Mr Rosenboom’s licence. It is also common ground that Mr Rosenboom was in possession of an unregistered firearm.

Mr Rosenboom’s case

8 Mr Rosenboom’s case is essentially that he has a profound appreciation of the principles of firearms safety, engendered by his training as a youth and subsequently inculcated through experience, competition and education. The ordinary arrangements for firearms storage at Mr Rosenboom’s premises not only meet but also exceed the mandated requirements. He has no previous Police history.

9 Mr Rosenboom relies on the material contained within the Commissioner’s brief and on written submissions prepared by his solicitor Mr Rigon. The evidence shows that Mr Rosenboom participated in an Electronic Record of Interview with police ("the ERISP"). He repeats and relies upon the matters raised in that ERISP.

10 While Mr Rosenboom concedes that he contravened the safe keeping and storage requirements of the Act he asserts that his failure was limited to the five-minute period immediately prior to the gun's discharge. He says that the firearm had previously been under his direct control in a lockable internal office preparatory to cleaning. Mr Rigon submits that this did not amount to an abandonment of control as Mr Rosenboom had moved into an adjacent room in sight of the room in which the firearm was stored. Mr Rosenboom’s inadvertence was momentary and the results, tragic.

11 It is apparent from the ERISP that Mr Rosenboom has had a long history of using firearms, both as a competition shooter and recreational hunter. It is equally apparent that Mr Rosenboom’s son often joined him in these activities and was familiar with the principles of firearms use and safety. Implicit in this is the concession that Mr Rosenboom had allowed his son unauthorised access to his firearms.

12 Mr Rigon referred to various authorities that deal with the issue of the revocation of firearms licences as a consequence of breaches of storage and safety requirements and sought to distinguish a number of those authorities. In particular he referred to the matters of Pantle v Commissioner of Police [2001] NSWADT 207; Wilkinson v Commissioner of Police [2002] NSWADT 59; Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110; Cottrel v Commissioner of Police, New South Wales Police Service [2004] 244; Bazouni & Ors -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 100; McVerry v Commissioner of Police, New South Wales Police Service [2003] NSWADT 179.

13 Mr Rigon submitted that the casual or reckless indifference to safety or dishonourable conduct manifest in Webb, Pantle, Cottrel and McVerry are not present in this instance. He concedes that Mr Rosenboom’s failure to register a firearm and allowing his son unauthorised access to his firearms impugn Mr Rosenboom, but he contends that they do not speak to anything approaching the degree of criminality in the prior conduct of Cottrel, Webb and Pantle, which involve calculated dishonesty, abuse of alcohol and contempt for the law and Police. It is submitted that this should be weighed against the positive objective and subjective features of this case such as the short period of contributory inattention and the appropriateness of usual storage and Mr Rosenboom’s positive attributes, including his long history of firearms use that is incident free, his good character and the anomalous nature of this conduct.

The Commissioner’s case

14 The Commissioner relies on the reasoning provided in the Internal Review Statement of Reasons. The Commissioner points to the fact that Mr Rosenboom’s son had gained access to one of Mr Rosenboom’s unsecured and unregistered firearms, loaded it with unsecured ammunition and used these to end his life. Mr Rosenboom appeared before Griffith Local Court on charges relating to possessing an unregistered firearm and for not storing that firearm safely. These offences were found proved but the Magistrate chose to proceed without recording a conviction pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999

15 The Commissioner also refers to the fact that Mr Rosenboom’s facilities for storage of his firearms was inspected and approved on 18 February 2004. The Commissioner contends that this indicates that Mr Rosenboom was well aware of legislative requirements. However, he failed in his responsibilities as a firearms licence holder in that he allowed three firearms to remain in a display case that was incapable of being secured due to a broken lock. It appears that Mr Rosenboom took no precautions to ensure that other persons in the house could not gain unauthorised access to his firearms. Ammunition was easily located nearby. The Commissioner further contends that this suggests that Mr Rosenboom does not have a full appreciation of the importance of strict observation of his obligations under the Act. He says that crucial components of firearms safety are strict compliance with the safe and secure storage of firearms when not in use.

16 The Commissioner also refers to the obligation imposed on licensees by section 39 of the Act 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. The Commissioner submits that these are fundamental requirements of responsible firearms possession and use.

17 The Commissioner submits that registration is also a fundamental requirement of legislation. However, not only did Mr Rosenboom fail to comply with registration and storage requirements, it appears that he also allowed his son access to firearms with no authorisation. The Commissioner says that the facts suggest that it is highly probable that Mr Rosenboom was in breach of section 39 of the Act by allowing an unauthorised person access to his firearms.

18 The Commissioner also refers to the fact that in recent times there was an extensive media campaign that advised to the general public that the NSW Police Service was conducting a ‘Gun Amnesty’. The Amnesty allowed for the unconditional surrender of firearms and/or the registration of non-prohibited firearms. A subsequent amnesty allowed for the surrender of illegal firearms to Police for destruction. The Commissioner says that there were ample opportunities for Mr Rosenboom to register his firearm, but that he chose otherwise, and this suggests an attitude that is not conducive to responsible firearms ownership.

19 The Commissioner relies on a number of authorities in which it has been held that contravention in respect of failing to meet the safe storage requirements as set out under Part 4 of the Act are fundamental in their nature in that they are contraventions which go to the crux of the principles and objectives of the Act: Cleofe v The Commissioner of Police [2001] NSWADT 2; Bevan v The Commissioner of Police [2004] NSWADT 1. He argues that the public needs to be confident that those who are afforded the privilege of a firearms licence store their firearms in accordance with the legislative requirements: Morris v The Commissioner of Police [2002] NSWADT 223. The objects and principles of the Act state that firearms are a privilege and inherent in the requirements is that persons who have access to firearms must act responsibly: Walker v The Commissioner of Police [2002] NSWADT 225. The public interest requires that all licensees be aware of and comply with the legislative requirements: Cook v The Commissioner of Police [2003] NSWADT 30.

Findings

20 I agree with the Commissioner’s view that the most fundamental principle of the Act is that the possession and use of firearms is conditional upon the overriding need for public safety. The legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences. That this is the intention of the legislature is apparent from the comments by The Hon J W Shaw, Attorney General and Minister for Industrial Relations, in the Second Reading speech on 25 June 1996 (at page 3562):

"The storage requirements are strict as non-compliance can easily compromise safety. For example, if firearms fall into the hands of children or others who are not licensed or trained in their safe use, accidental shootings can occur. And it is crucial to make every attempt to guard against youth suicide and to protect family members from firearms accidents."

21 Additionally, the Attorney General stated:

"Legislation should have the effect of making failure to store firearms in the manner required an offence, as well as a matter that will lead to the cancellation of the licence and the confiscation of all firearms."

22 The gravity of the circumstances that have lead to this matter is unquestionable. The evidence suggests that Mr Rosenboom was familiar with the legislative requirements. However it also suggests a history of contravention of those requirements. The responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the laws that govern them, they also must act in accordance with them.

23 It is submitted that Mr Rosenboom has shown genuine remorse, that his appreciation of the importance of strict observance of his obligations as a firearms licensee has been strengthened by these incidents and that no person could be more acutely aware of the danger of any breakdown in firearms control. It is further submitted that as a matter of public policy, in the local area and more broadly amongst the firearm owning community, the reinstatement of his licence would serve as an ongoing and indeed, confronting reminder of the need for vigilance. I have no basis on which I can either agree or disagree with these submissions. Commonsense would suggest that someone in Mr Rosenboom’s position would have had their mind focused on these issues and developed an acute awareness of the danger of any breakdown in firearms control. However, I am unable to say whether that is so in Mr Rosenboom’s case.

24 The Tribunal has considered numerous applications relating to the revocation of a firearms licence where the licence holder has failed to meet the requisite storage requirements contained in Part 4 of the Act. The principles which emerge from these decisions were summarised by the Deputy President in Uzelac v Commissioner of Police, Ministry of Police [2003] NSWADT 226 at paragraph 19:

"9 The legal principles which apply to the revocation of a firearms licence have been set out in previous decisions of this Tribunal. In summary, the following principles can be extracted:
- while there is no onus of proof on either party, 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. (Phegan -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 127; Hart -v- Commissioner of Police, New South Wales Police Service [2003] NSW ADT 114 [51] to [54]);
- the principal issue is whether there is a risk to the safety of the public if the applicant retains the licence. (Vella -v- Commissioner of Police, NSW Police Service [2003] NSWADT 91 at [35]). Relevant considerations include:
- the reason for failing to store the firearm safely;
- the length of time the firearm was not stored safely;
- the potential or real danger posed by failure to store the firearm safely;
- the person's previous conduct in relation to storage of firearms and any related matter;
- the person's understanding of the importance of safe storage and the likelihood that firearms will not be stored safely in the future; and
- the reason the person has a firearms licence, keeping in mind that firearms possession and use is a privilege that is conditional on the overriding need to ensure public safety. (Moody -v- Commissioner of Police, New South Wales Police [2002] NSWADT 146 at [25])
- in relation to the first three considerations, if the breaches of the Act or regulations are trivial or excusable, as distinct from fundamental, there is less likelihood of a risk to public safety (Cusumano -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 50
- the discretion to revoke a licence must be exercised keeping in mind the nature of the conduct and the principles and objects of the Act; (Yaghi -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 91 at [37]."

25 In this matter the evidence shows that at least one of Mr Rosenboom’s firearm was not stored safely and that Mr Rosenboom owned an unregistered firearm. The evidence also suggests that Mr Rosenboom allowed his son to have access to firearms when he was not authorised to do so. The evidence of Mr Rosenboom’s current understanding and appreciation of the importance of safe storage is scant. In Hart I considered the issue of whether there is any obligation on a party to produce evidence and I stated at paragraph 48 -49:

"Where there is a good deal of evidence before the Tribunal pointing in one direction, and an intelligent observer could see that unless contrary material comes to light that is the way the decision is likely to go, common sense dictates that a person who has relevant material in his possession should put that material before the Tribunal. If facts are peculiarly within the knowledge of one party to an issue, a failure by that party to produce evidence as to those facts may lead to an unfavourable inference being drawn. ... If [the applicant] had knowledge of persuasive and relevant facts regarding the matter before the Tribunal, and those facts were not known to the Commissioner, common sense dictates that he should have put the material before the Tribunal."

26 It is likely that Mr Rosenboom could present material that would persuade the Commissioner that he has sufficient understanding and appreciation of his obligations as a licensee. However, he has not put the material before the Tribunal. That being the case, it is my view that more would be required before the public could be comfortable with Mr Rosenboom again holding a firearms licence. Accordingly, it is my view that the decision under review should be affirmed. Should Mr Rosenboom choose to reapply for a licence he could take steps to overcome this position by providing the Commissioner with relevant material to persuade him to grant the licence that he is seeking.

Order

The decision under review is affirmed.