Raffoul v Commissioner of Police, NSW Police [2008] NSWADT 6 (7 January 2008)

Last Updated: 12 February 2008

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Raffoul v Commissioner of Police, NSW Police [2008] NSWADT 6


DIVISION:
GENERAL DIVISION

PARTIES:
APPLICANT
Johny Raffoul
RESPONDENT
Commissioner of Police, NSW Police



FILE NUMBERS:
073245

HEARING DATES:
03/12/2007

SUBMISSIONS CLOSED:
3 December 2007



DATE OF DECISION:
7 January 2008

BEFORE:
Handley R - Acting Deputy President





LEGISLATION CITED:
Firearms Act 1996
Administrative Decisions Tribunal Act 1997

CASES CITED:
Commissioner of Police, New South Wales Police v Mercer (GD) [2005] NSWADTAP 55
Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28
Australian Broadcasting Commission v Bond (1990) 170 CLR 231
Fielden & Fielden v Commissioner of Police, NSW Police Service [2000] NSWADT 156
Commissioner of Police v Toleafoa [1999] NSWADTAP 9

TEXTS CITED:


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

MATTER FOR DECISION:
Principal matter


REPRESENTATION:
In person
S Sheather, Solicitor


ORDERS:
The decision under review is affirmed.


Reasons for Decision:

1 On 17 August 2007, Johny Raffoul applied to the Tribunal for the review of a decision of the Commissioner of Police made under the Firearms Act 1996 (‘the Act’) to refuse his application for a category ABG firearms licence on the grounds that (1) Mr Raffoul may not personally exercise continuous and responsible control over firearms, (2) he is not a fit and proper person to have possession of firearms, and (3) the issue of a licence to him would be contrary to the public interest.

Background
2 Mr Raffoul was born on 12 July 1969 and is aged 38. Between 1984 and 1997, he was charged with a number of criminal offences including stealing, assault, resisting arrest, various driving related offences, and breach of two domestic Apprehended Violence Orders (‘AVOs’). Some of the charges did not lead to convictions and were dismissed by the Court. Since 1997, although Mr Raffoul has been charged in relation to four separate incidents - on 14 April 2003, 14 December 2004, 2 December 2005, and 17 February 2006, all the charges have been withdrawn or dismissed except that on 14 April 2003 of "maliciously destroy or damage property", in respect of which he was convicted and entered into a good behaviour bond for 12 months. Mr Raffoul has also committed various speeding and other traffic offences including, on 18 August 2004, "drive with low range concentration of alcohol".
3 On 15 February 2007, Mr Raffoul successfully completed a firearms safety training course. He is also a current member of the Sporting Shooters’ Association of Australia (Inc), his registered club activities being target shooting, hunting and collecting. On 23 February 2007, Mr Raffoul lodged an application for a personal firearms licence for the purpose of sport/target shooting, recreational hunting/vermin control, and firearms collection.
4 On 8 May 2007, a delegate of the Commissioner refused Mr Raffoul’s application because he did not meet the criteria to hold a category ABG firearms licence. The statement of reasons for this decision referred to Mr Raffoul’s recent history of being charged with various criminal offences, and also noted that the NSW Police have information concerning numerous domestic incidents in which Mr Raffoul has been involved over a number of years. The delegate said he was satisfied that Mr Raffoul might not personally exercise continuous and responsible control over firearms, and nor would it be in the public interest for him to be issued with a firearms licence authorising the possession and use of firearms due to his domestic circumstances. Mr Raffoul sought an internal review of this decision.
5 On 20 July 2007, an internal review officer made a fresh decision confirming the Commissioner’s decision to refuse Mr Raffoul’s category ABG firearms licence application. Having "perused" police records, the review officer noted that Police had been contacted on a number of occasions in the past two years in relation to Mr Raffoul’s involvement in various domestic disputes, as a result of which he had been subject to a number of interim domestic AVOs. The review officer said, "it would appear that your family life is not particularly stable or that your behaviour is any more responsible now than when you were making ‘errors in earlier life’". The review officer also noted that the charges laid against Mr Raffoul concerned conduct "allegedly involving violence, threats of violence or intimidation", and that some of the charges were dismissed or withdrawn because other parties involved did not want to proceed with those matters.
6 The review officer said that whether or not Mr Raffoul was convicted of those offences, in the interests of public safety, the officer could not exclude the possibility that the incidents occurred in the manner reported, and that it was probable that during at least some of the alleged incidents, Mr Raffoul’s behaviour was not that of a person the public would trust to be authorised to possess firearms. The review officer was concerned with "the very possible risk to public safety". He concluded:

"In summary, I am satisfied that not enough ‘incident free’ time has passed to be comfortable in granting your application to possess firearms. Given the offences for which you have been convicted and the large number of reported incidents and serious allegations levelled against you, I hold concerns that you may pose a grave risk to public safety if you were given access to a firearm. As such, I am satisfied that it would not be in the public interest for you to be issued with a licence authorising the possession and use of firearms."

Mr Raffoul’s evidence and submissions
7 Mr Raffoul said he was born in Parramatta in 1969. His father had a restaurant in Parramatta and they lived on a ten acre property in Kellyville. Mr Raffoul went to a Catholic school in Harris Park. He used to go hunting in the bush with his father about once a month. Mr Raffoul indicated that because his parents were otherwise busy, he and his siblings "ran amuck". He went to prison at the age of 17 for a traffic offence and, when he got out, his parents took him to Lebanon for four months where they were delayed because of the war there.
8 About a year later, Mr Raffoul started going out with Vicky Archer, with whom he fell in love, and they started living together in a de facto relationship. Their son Michael was born in 1990. Mr Raffoul said that Vicky’s mother saw him as a threat. Vicky had a change of heart and left him, and he did not see her for six months. There was a lot of tension and anger between them. Mr Raffoul obtained access to his son through the Court. Sometimes Vicky broke away from her family and returned to live with him, but it was not a stable relationship for their son. Of his own accord, Michael subsequently came to live with Mr Raffoul for about five years, until late 2005. But when Michael went to visit Vicky’s father, further problems arose when Michael refused to return to Mr Raffoul’s care, especially between Mr Raffoul and Vicky’s sister, Rhonda, who applied for an AVO against him and tried to have him charged with assault. However, the Court dismissed the AVO application and charges. Mr Raffoul said he has had to accept that Michael is now 17 years old and it is up to Michael to choose where he lives. Mr Raffoul has had "to walk away" from his son and has only seen him once in two years. He has tried to avoid the Archers.
9 Mr Raffoul said his relationship with Vicky gave rise to a lot of problems because he did not get on with Vicky’s parents and sister. He and Vicky’s father were on good terms until about 2001 when there were problems over the custody of Michael and Mr Raffoul’s access to him. Vicky’s father pulled a gun on him on several occasions, although Mr Raffoul never reported this. Mr Raffoul discovered that he had not been registered as Michael’s father at birth and tried to have Michael’s surname changed to Raffoul. Mr Raffoul acknowledged that he and Vicky’s father threatened one another, but said he did not remember saying he would put a bullet through Vicky’s father’s head and those of his family, as alleged. He doubted he would have said this.
10 Mr Raffoul disputed the Police versions of incidents that occurred in 1989, 1991 and 1994. He said that even though he was born in Australia, he was called an "ethnic", harassed, beaten up and called nasty things. There was an occasion in 1989 when he was arrested by Police and taken to Merrylands Police station where he was assaulted by Police who broke his nose. Mr Raffoul agreed that he would loose his temper in such situations, but said he would only respond with his mouth and not with his hands. However, he acknowledged that there was an occasion in March 1991 when he saw Vicky and her mother with Michael, and when he approached them to speak to Michael, Mrs Archer called him a dirty dog and he retaliated by slapping her face. Mr Raffoul agreed that he was hot-headed and did not always deal with things in an appropriate way.
11 Mr Raffoul acknowledged that he has been convicted of low range drink driving, but denied he has an alcohol problem. He said his father was an alcoholic and he and his brothers and sisters are the opposite. Generally, he only drinks about once a fortnight or once a month and not otherwise.
12 Mr Raffoul said he has been living in a de facto relationship with Lisa Pozzecco, who is a school teacher, for about five years. Their relationship is good although it has had its problems. His wife has a bad temper for which she has received counselling. On one occasion, she chipped a bone in his ankle when she threw something at him. They have two children. The older one, Isabella, who is four, is developmentally retarded and cannot walk or talk. She has hospital check ups every three months but the hospital has been unable to diagnose the problem. Mr Raffoul said it is not easy having a disabled child and his wife gets stressed and suffers from depression, for which she has had help from a psychiatrist in the past. It also affects him, but he tries to stay relaxed, although he tends to "bottle it up". He and Lisa also have a three year old son James, who is fine. Mr Raffoul said he and Lisa hope to get married soon, but at the moment they are "doing it tough with the mortgage etc".
13 In cross-examination, Mr Raffoul agreed that he and Lisa have had domestic problems as a result of which the Police have been called. He said that mostly it is he who calls the Police, although there was one occasion when Lisa called them. He denied that calls to the Police were a daily occurrence and said, at that time (mid 2006), Police were called about once or twice a month. Mr Raffoul said both he and Lisa have been hurt and upset. He was referred to an incident on 13 February 2006 when Police were called, and he was subsequently interviewed by Police. Mr Raffoul said the computer, which he was using at home at the time, had fallen on the floor because the table on which it was placed was unstable. Lisa had become angry and tried to stab him with a knife when she found a blonde hair in his car and thought he was being unfaithful to her. He denied this. Mr Raffoul became angry and concerned when Lisa grabbed the children hard. He denied ever hitting Lisa but said he had thrown a glass bowl and a vase out of the front door onto a bank to try and stop her. Unfortunately, the bowls rolled off the bank onto the pathway and smashed, although he had not intended this.
14 Mr Raffoul said he does not believe he has a problem with his emotions. He is disciplined and would not retaliate physically. He is basically a good person and would not hurt anybody. He is not proud of what he has done in the past and the hurtful words he has used. He has, however, had to endure a lot of pain in his life – especially with bringing up Michael and, more recently, with his disabled daughter, and he has had many family problems. Mr Raffoul said he moved from the Granville/Parramatta area to a nice area in Glen Alpine to get away from problems. He attends Bible studies and believes this has helped him a lot. He feels his life is heading in a positive direction. The Police have not been round to his house recently.
15 Mr Raffoul was asked about his relationship with Police. He denied that he hates Police. He has been called a "wog" by Police on numerous occasions and, even though he is a Christian, has been told to get on his knees and pray to Allah. Mr Raffoul was asked about an incident with Police in 2004. He said a Police officer called him a "wog" and other nasty things, and Mr Raffoul acknowledged that he may have sworn at the officer in response. With regard to another incident in 2003, he said he had been sprayed in the face with capsicum spray when already in Police custody. He was "roughed up by Police and called an Arab". The Court dismissed the charges brought in respect of that incident, and one of the Police officers subsequently apologised to him.
16 Mr Raffoul was asked about an incident in late 2003 when he withdrew from the purchase of a house he had bought at auction. He said he discovered the vendor was connected with the Rebel Angels motorcycle gang and that every room in the house was bugged. Mr Raffoul said he and Lisa walked out of the transaction. He dismissed the vendor’s account of what happened. It was he who was threatened by the vendor. No charges were laid in respect of the incident.
17 Mr Raffoul was also asked about an incident in the gaming lounge at the Rosehill Hotel in January 2002. He said he had an argument with a woman behind the bar who asked him to leave. A man then grabbed him by the neck from behind, picked him up off the ground and was choking him. Mr Raffoul responded by punching him, the man dropped him, and Mr Raffoul left. (The Computerised Operational Policing System (‘COPS’) records that the victim was taken to hospital and was at the time affected by alcohol. No charges were laid in respect of this incident.)
18 Mr Raffoul said he had previously had a firearms licence, which was revoked in 1991. He enjoys target shooting and hunting, and so recently applied for another licence. Currently, he breeds hunting dogs, and accompanies a friend who is a professional kangaroo shooter and who goes hunting for kangaroo and wild boars. His friend sells the carcasses for meat. Mr Raffoul said he wants a firearms licence to enable him to shoot pigs, kangaroos, rabbits etc. He would like to buy a property in the Blue Mountains and be a primary producer. A licence is not essential, but he enjoys hunting, and having a licence would make life easier for him. He also applied for a collector’s permit to enable him to purchase a unique firearm from a friend.
19 Mr Raffoul said he works as a self-employed bargain hunter, attending garage sales and auctions. He is also a spare parts and auto broker, dealing especially in commercial vehicle parts. His contacts consider him honest. In addition, he has recently applied to join the Army Reserve.
20 Mr Raffoul said more than ten years had passed since he had committed any prescribed offence when he applied to do the firearms safety training course. He has joined the Sporting Shooters’ Association. He has also undertaken a bodyguard course and may at some stage seek work as a security guard if he is granted a firearms licence. Mr Raffoul said he cannot understand why his application for a firearms licence has been rejected when he was permitted to do the firearms safety training course.
21 In conclusion, Mr Raffoul said a lot of the evidence presented by the Police has been fabricated. He does not hate the Police, as alleged by the Commissioner, although he has encountered a few Police officers who have been "out of line". He respects the law and feels he has been "hard done by". He is not violent or aggressive, it is more than 10 years since he lost his licence, and he believes he deserves a chance. Mr Raffoul acknowledged that there are incidents in his past that he could have dealt with better, but said he has changed. His relationship with Lisa is good and she is a fine and responsible woman. They are sensible people, and he wants a chance to prove himself. He would never in his "wildest dreams" threaten someone with a weapon.

The Commissioner’s evidence and submissions
22 The Commissioner’s evidence comprises the documents produced pursuant to s 58 of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’) together with a further brief of evidence. Mr Sheather, for the Commissioner, also provided the Tribunal with confidential evidence in respect of three incidents. Of this evidence, Mr Sheather subsequently agreed to provide the evidence in respect of the first incident on 4 September 2006 to Mr Raffoul, since Mr Raffoul had already referred to that incident in the course of giving evidence.
23 I made an order under s 75(2) of the ADT Act in respect of the evidence presented in respect of the second and third incidents, prohibiting the publication or disclosure of that evidence to the public, including Mr Raffoul, and conducting the hearing in respect of that evidence in closed session, including the taking of oral evidence by conference telephone, by reason of the confidentiality of the evidence. I subsequently declined to take the evidence in respect of the second incident into account on the ground that it would, in the circumstances, be unsafe to do so. In the publicly available version of this Statement of Reasons, specific reference to the confidential evidence in respect of the second and third incidents is deleted.
24 Mr Sheather adopted the statements of reasons given for the original and internal review decisions. He pointed to numerous incidents involving domestic violence arising out of Mr Raffoul’s relationships with Vicky Archer and Lisa Pozzecco. Mr Sheather submitted that while Mr Raffoul’s evidence is that his relationship with Ms Pozzecco is "fine" at the moment, Police evidence suggests otherwise. As recently as August 2006, Police were attending Mr Raffoul’s home twice a month in relation to domestic problems, and the evidence suggests these problems are likely to continue, especially given the stress arising from their caring for their mentally disabled daughter. The evidence suggests Mr Raffoul continues to have a temper, and the evidence of past threats of violence towards family members raises concerns that this may continue to occur.
25 Referring to s 11(4)(a) of the Act, Mr Sheather submitted there is strong evidence to support the Commissioner having reasonable cause to believe that Mr Raffoul "may not personally exercise continuous and responsible control over firearms" because of his domestic circumstances. Mr Raffoul has a history of violent behaviour and stormy relationships. Mr Raffoul might not act in an appropriate manner in extreme circumstances, and if either Mr Raffoul or Ms Pozzecco had access to firearms kept at their home, there would be a concern for public safety.
26 For similar reasons, and with reference to s 11(3)(a) of the Act, Mr Sheather submitted that Mr Raffoul was not a fit and proper person who could be trusted to have possession of firearms without danger to public safety. Moreover, the issue of a licence to Mr Raffoul would be contrary to the public interest (s 11(7)). In this instance, public safety is the overriding consideration. Mr Sheather submitted that Mr Raffoul does pose a danger to public safety. He has a long history of intimidatory, anti-social behaviour, and it is foreseeable that, for example, if discriminatory remarks were made to him, he would pose a threat to public safety.

Discussion
27 Section 11 of the Act sets out general restrictions on the issue of firearms licences. The relevant provisions in this case are subsections (3)(a), (4)(a) and (7), as follows:

"(3) A licence must not be issued unless:

(a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, and ...

(4) Without limiting the generality of subsection (3)(a), a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of:

(a) the applicant’s way of living or domestic circumstances, or ...

(7) Despite other provisions in this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest."

28 In my view, the evidence presented by the Commissioner clearly establishes a long history of troubled domestic and family relationships involving Mr Raffoul. I accept that while he was born and educated in Australia, and brought up in the Catholic faith, he has probably encountered discrimination by reason of his Lebanese background. Mr Raffoul said he "ran amuck" as a child. His evidence and the Police record suggests that the means he developed of dealing with conflict, discrimination and other problems was that of responding with, at least, verbal abuse. The evidence of a series of criminal charges in relation to domestic disputes involving his relationship with Vicky Archer, suggests, as Mr Raffoul acknowledges, that he "used his mouth" in response to situations of conflict. However, the evidence indicates that on some occasions the verbal abuse included physical threats.
29 Mr Raffoul acknowledges that his relationship with Lisa Pozzecco has also at times been a stormy one, in which the Police have often been called to domestic disputes. Undoubtedly, that relationship has been strained by the difficulties posed by caring for a developmentally disabled child. The Commissioner has presented evidence of the Police being called to domestic disputes at Mr Raffoul’s house as recently as August 2006. Up until that time, Mr Raffoul’s evidence is that Police were being called to his house about twice a month. He claims that it was often he who called the Police when Ms Pozzecco became angry.
30 With regard to Police records concerning Mr Raffoul, I note the Tribunal decision in Commissioner of Police, New South Wales Police v Mercer (GD) [2005] NSWADTAP 55, at par 20, where the Appeal Panel observed that, "[i]t is quite possible that material considered in a criminal proceeding will be relevant to the exercise of a licensing discretion even though the particular offences charged have not been proven." Thus, in my view, I am entitled to take into account Mr Raffoul’s Police record. Essentially, it is the applicant’s conduct that must be considered, and thus the decision-maker is not limited to a consideration of only the applicant’s criminal convictions.
31 In the last ten years, despite his being charged in relation to a number of incidents with offences such as assault, intimidation and maliciously destroying or damaging property, all charges against Mr Raffoul have been withdrawn or dismissed except one charge of "maliciously destroy or damage property" on 12 April 2003, of which he was convicted, and entered into a 12 months good behaviour bond. Mr Raffoul has also committed various traffic offences during this period, including driving with a low range concentration of alcohol. (Having heard from Mr Raffoul, I am not satisfied that he has an alcohol problem – his evidence is of moderate consumption on one or two occasions per month.)
32 Mr Raffoul said he is not proud of his history, but believes he has changed and deserves a chance. I am not satisfied that he "hates Police" and find, based on his evidence, that in the past he may have been the subject of Police abuse by reason of his Lebanese background. Mr Raffoul’s principal reason for wanting a firearms licence is to enable him to go hunting. As he acknowledged, a licence is not essential for him, although it would enable him to undertake a pursuit he enjoys.
33 The underlying principles of the Act stated in s 3(1) emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (‘Ward’), at par 28, Deputy President Hennessy said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk".
34 Turning to s 11(3)(a) of the Act, the meaning of the expression ‘fit and proper person’ was discussed by the High Court in Australian Broadcasting Commission v Bond (1990) 170 CLR 231. Toohey and Gaudron JJ said at par 36 of their judgment:

"The expression ‘fit and proper person’, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of ‘fit and proper’ cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur."

35 In terms of s 11(3)(a) of the Act, Deputy President Hennessy said in Ward, at par 27, that "[t]he question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms". On the basis of the evidence before me, and especially Police evidence establishing a long history of troubled domestic and family relationships, including verbal abuse by Mr Raffoul and, in the past, physical threats, I am not satisfied that the community would yet have confidence that such conflict and verbal abuse might not reoccur with a consequent risk to public safety.
36 The application of s 11(4)(a) of the Act was discussed by the Tribunal in Fielden & Fielden v Commissioner of Police, NSW Police Service [2000] NSWADT 156, at par 51ff, where domestic violence problems were considered and the Tribunal concluded that it was not in the public interest for the applicant to continue to hold a firearms licence. Mr Raffoul’s domestic circumstances involve what has, at times, been a stormy relationship between him and Ms Pozzecco, albeit one that I accept is made more difficult and stressful by reason of caring for their developmentally disabled child. In my view, given the evidence concerning that relationship, there is at present still reasonable cause for the Commissioner to believe that, in a conflict situation, Mr Raffoul may not personally exercise continuous and responsible control over firearms.
37 With regard to s 11(7) of the Act, in Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at par 25, the Appeal Panel said that the ‘public interest’ "is an inherently broad concept giving the appellant [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual". In my view, there are reasonable grounds for the Commissioner to consider that the issue of a firearms licence to Mr Raffoul would be contrary to the public interest. Essentially, as I have stated above, given the evidence of Mr Raffoul’s Police record, there are currently reasonable grounds to have a concern for public safety if a licence were issued to him.
38 I accept Mr Raffoul’s evidence that he is more self-disciplined in situations of conflict than he was in the past. His evidence is that he has been assisted in this by his attending Bible studies. However, there is evidence of domestic conflict in which the Police have been called as recently as August 2006, and I am not satisfied that Mr Raffoul’s recent history is sufficient yet to establish that there is virtually no risk to public safety if he were to be granted a licence. If in the future Mr Raffoul is able to establish that his domestic situation is stable in the longer term and that there is no likelihood of his being involved in situations of conflict which give rise to verbal abuse or physical threats posing a risk to public safety, then a different view might be taken.
39 For the moment, I am satisfied that there were reasonable grounds for the Commissioner to refuse Mr Raffoul’s application for an ABG firearms licence and I therefore affirm that decision.

Decision

The decision under review is affirmed.