QF v Commissioner of Police, NSW Police Force [2009] NSWADT 238 (16 September 2009)

Last Updated: 25 September 2009

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
QF v Commissioner of Police, NSW Police Force [2009] NSWADT 238


DIVISION:
GENERAL DIVISION

PARTIES:
APPLICANT
QF

RESPONDENT
Commissioner of Police, NSW Police Force



FILE NUMBERS:
083383

HEARING DATES:
19 May 2009




DATE OF DECISION:
16 September 2009

BEFORE:
Molony P - Judicial Member





LEGISLATION CITED:
Firearms Act 1996

CASES CITED:
Brosowski v Commissioner of Police [2003] NSWADT 182
Commissioner of Police, New South Wales Police Service v Toleafoa [1999] NSWADTAP 9
Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50
Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409
Economides v Commissioner of Police [2004] NSWADT 156
Huckel v Commissioner of Police [2008] NSWADT 347 Tolley v Commissioner of Police [2006] NSWADT 149
Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28

TEXTS CITED:


APPLICATION:
Firearms Act - Firearms licence - impose a condition on licence or permit

MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
D Roth, solicitor
RESPONDENT
A Johnson, solicitor



ORDERS:
The decision of the Commissioner of Police to impose conditions on QF’s firearms licence is set aside.


Reasons for Decision:

REASONS FOR DECISION

Background
1 In these reasons the names of private individuals, and other information which might identify them, have been anonymised. The reasons refer to confidential personal and health information relating to a number of persons, who are not parties to the proceedings, and who could be readily identified were the personal information relating to individual parties disclosed.

2 QF lives with his fiancé, Mrs A, and her adult son, HA, in country NSW. QF has a grown family of his own. QF holds a supervisory position in the mining industry.

3 HA has a mental illness for which he is receiving treatment.

4 QF holds a Category AB firearms licence under the Firearms Act 1996. On 18 September 2008 the Commissioner imposed special conditions on that licence, as a result of information ‘relating to your domestic circumstances, issues of public safety and access to firearms by’ his adult son (not HA). Those conditions were that:

‘1. Firearms are not permitted to be possessed or stored at the residence of the licence holder,

2. The licence holder is not permitted to possess or use firearms at your residence whilst his son ... is a resident or visitor to that residence.’

5 QF sought an internal review of that decision. On 19 November 2008 it was affirmed on internal review. While the internal review officer held "no concerns regarding your personal access to firearms" his son’s record of ‘serious criminal offences,’ committed over an ‘extensive period,’ gave ‘every indication that he does not respect by the law or abide by it.’ The internal review officer expressed significant concerns that QF’s son would shortly be released from prison and had ‘threatened to kill a police officer.’ The decision continued:

‘You have five firearms registered to your firearms licence which were stored at your residence. Although I find no evidence to suggest that you would misuse firearms, your son's conduct has been violent in the past and I therefore believe I cannot rule out the possibility that he may attempt to intimidate you in order to gain access to your firearms. However, rather than refuse you further authorisation for firearms, I believe it is appropriate in the public interest to instead restrict your use of firearms and their storage location.’

6 On 18 December 2009 QF filed an application to review that decision in this Tribunal.

7 The matter came before me for hearing on 19 May 2009. At that hearing the facts relied on by the Commissioner to support a decision to impose the conditions was broadened to include the risk posed by HA, because of his mental illness, residing in the premises where QF stores his firearms.
8 There was no dispute about QF’s safekeeping arrangements for his firearms. He has a gun safe, with two locks, which is bolted to the walls and concrete floor of a store room, off the breezeway, at his home. He keeps the one set of keys to the gun safe with him. The store room is also kept locked, with only his fiancé and himself having a key to the door.

9 Since the conditions were imposed on his licence, QF has had to store his firearms away from home. The nearest safe storage facility is some 70km away. This is causing him considerable inconvenience as he requires ready access to his firearms to control vermin and put down stock.

10 In the course of the hearing I heard evidence from QF, Mrs A, and Senior Constable F, who was a local police officer. Each of them impressed me as doing their best to give accurate and complete evidence to the best of their recollections.

11 The case was conducted on the basis, and I accept that, QF is of good character and reputation with significant experience in the handling and safe storage of firearm. There is no suggestion that he is any way personally unfit to hold a firearms licence, or that he personally creates a risk to the public safety. Rather the risk is said to emanate from his son and HA.

The Applicable Law
12 The Firearms Act 1996 creates a comprehensive scheme for licensing persons in New South Wales to possess and use firearms. The principles and objects of the FA Act are set out in s.3. Sub-section (1) establishes that the underlying principles of the Act are to:

‘(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.’

13 Section 19(1) of the Firearms Act 1996 provides that a licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit. The discretion to impose conditions is very broad. The Act does not specify how it is to be exercised: See Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50 at paragraph [23]

14 In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 at [27-28] the Tribunal explained that:

27 One of the objects of the Act, as set out in s 3, is to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety." In determining whether Mr Ward is a fit and proper person to hold a licence consideration must be given to the circumstances surrounding his conviction for assault. The 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.

28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.

15 The Tribunal has made a number of decisions in which the main issue has been whether the licence holder posed any risk to public safety, including their own safety, if access to firearms were granted: see for example Huckel v Commissioner of Police [2008] NSWADT 347 and Economides v Commissioner of Police [2004] NSWADT 156. Those decisions have usually involved a consideration of whether a firearms licence should be revoked.

16 In Tolley v Commissioner of Police [ 2006] NSWADT 149 Fitzgerald JM considered a case in which the Commissioner had imposed a condition on the licence which restricted the licence holder’s ability to store firearms at his premises. As is the case here the Commissioner’s concerns for the public safety arose not from the licence holder’s conduct or antecedents, but those of his son. The son had prior convictions for drug offences conducted on the licence holder’s premises, and was on remand awaiting trial for serious drug offences. Police had previously found the son in possession of 2 rifles, and had found unregistered firearms in a search of premises of his co-accused. At [31] the Tribunal found:

31... Given the breadth of the Commissioner’s discretion and the overriding object of public safety there is no basis for differentiating between conduct of the Applicant themselves and conduct of another which may impact on public safety in the context of a firearms licence.

32 Public safety is not defined in the Firearms Act 1996. However, the Tribunal's Appeal Panel considered the public interest in the context of security industry licencing in Commissioner of Police, New South Wales Police Service v Toleafoa [1999] NSWADTAP 9. At paragraph 25 it stated 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.’

17 In finding that there was a risk the Tribunal said, at [38]:

‘It cannot be said that there is virtually no risk to public safety if Mr Tolley keeps the firearms at his premises. Determining hypothetical questions such as whether Stuart Tolley will return to reside with his parents and whether Mr Tolley is at greater risk of theft or home invasion is unnecessary to reach this decision. There is a risk to public safety by the existence of the firearms on premises where Stuart Tolley and his associates may be aware firearms are present.’

18 The likelihood of risk is to be assessed by reference to relevant prior conduct: Brosowski v Commissioner of Police [2003] NSWADT 182 at [41].
19 Applying that understanding of the law the question to be determined, in circumstances such as those under consideration here, is whether the Tribunal can be satisfied that there is virtually no risk to the public safety from the person identified by the Commissioner as posing a risk to the public safety, should the licence holder continue to store and possess firearms at his or her premises.

20 Section 63 of the Administrative Decision Tribunal Act 1997 says that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the Commissioner, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.

Issues
21 The issues for determination in this case therefore are twofold.

22 First, whether there is virtually no risk to the public safety (from QF’s son) should the QF continue to store and possess his firearms at his premises.

23 Secondly, whether there is virtually no risk to the public safety (from HA) should QF continue to store and possess his firearms at his premises.

Is there virtually no risk from QF’s son?
24 QF’s son is in his forties. He .has an extensive criminal history including a number of drug possession convictions, convictions for common assault and assault occasioning actual bodily harm, and malicious damage to property. He has an extensive and escalating record of driving convictions, including negligent driving occasioning grievous bodily harm and driving while disqualified.

25 As QF said in evidence a perusal of the materials relied on by the Commissioner reveals that his son’s convictions, apart from those associated with possession of drugs or driving, arise in the context of domestic violence directed to his partner and family members. A series of apprehended violence orders reflect this. The records reveal that a common factor in these offences was alcohol. There is no indication that QF’s son has ever used a weapon. His escalating driving record resulted in him being sentenced to imprisonment for driving occasioning grievous bodily harm, while disqualified from driving, in January 2008.

26 He was charged with intimidating a police officer in the execution of his duties but those charges were dismissed at the Local Court in January 2008. My understanding is that this relates to the threat to kill a Police officer referred to in the internal review officer’s decision. Given that the charges were dismissed I do not accept that allegation.

27 Despite that, there remains in effect an apprehended violence order which prevents QF’s son entering the town in which he lives taken out on the application of the Police officer concerned.

28 QF said that his son has a ‘vile temper’ but that an anger management course he did has helped with this. QF was aware of the damage his son had done to his partner and home in 2006 and had witnessed his attack on his son in law. QF said his son ‘goes off’ when he has had too much to drink.

29 What is apparent from the criminal record is that QF’s son has displayed little respect for the law and a propensity to disregard it.

30 It is not, however, a criminal record comparable to that considered by the Tribunal in Tolley. In that case there was evidence of the licence holder’s son being engaged in significant criminal enterprises, with which the use of firearms are often associated, and evidence associating him with the possession of firearms. Importantly, the licence holder’s premises in Tolley had been used in the course of the son’s criminal enterprise. By contrast the criminal record of QF’s son presents the sad and unfortunately familiar picture of a man who abuses drugs and alcohol, and progressively becomes enmeshed in a pattern of recurring domestic violence and driving offences. Those offences have not occurred at his father’s home and have never been directed to his father. While the conduct of the sons in both cases should be condemned, there is a qualitative difference between the two. The son in Tolley was engaged in criminal enterprises in which resort to firearms is too common, whereas QF’s son appears to be a man who resorts to personal physical violence against members of his household when drinking.

31 As a result, QF’s son knowing that his father has firearms at his premises does not cause me have the same concerns that the Tribunal had in Tolley when Fitzgerald JM said that, at [38] -

‘There is a risk to public safety by the existence of the firearms on premises where Stuart Tolley and his associates may be aware firearms are present.’

32 I am reinforced in this conclusion by the fact that since his release from prison QF’s son has moved interstate, with the permission of the Parole Board. QF gave evidence that because his son was not allowed into town, he had not visited since his release. He has moved interstate and is living with family members there. QF said he understood that his son’s plan was to continue living interstate, and said that he had a job lined up. He did not know what would happen if the job did not come through.

33 QF said that his son had spent six years living with him and had not, in that time, had access to any of QF’s firearms, nor asked to see them.

34 Each of these factors reinforces my conclusion that in the case of QF’s son there is virtually no risk to the public safety should QF be allowed to possess and store his firearm at home.

Is there virtually no risk from HA?
35 HA is in his late twenties. According to his treating doctor he suffers from Schizoaffective disorder. While much of the material produced by the Commissioner refers to a diagnosis of bipolar disorder, his treating doctor has a different diagnosis. His mother says he has never been diagnosed as bipolar. According to the short report from his doctor dated 8 April 2009:

‘He does not, nor has he ever, exhibited any interest in guns.

He has been very stable from the mental health point of view and functions very well in society.’

36 HA lives with QF and his mother. He has done so for the last five years. He works with QF in his contracting business. He regularly attends his doctor. He is not presently prescribed any medications for his illness, but is said by his doctor, Mrs A and QF to be well and stable. He has been actively and successfully engaged in efforts to improve his employment opportunities by undertaking TAFE courses. Mrs A said that she regarded HA’s association with QF as ‘great’ for HA, providing him with a model of stability and work.

37 According to both QF and Mrs A, HA’s mental health has been stable since his last admission to hospital in 2007, when he became unwell following the death of his grandmother. While he has been on a community treatment order in the past, this is no longer the case.

38 Both QF and Mrs A told me that they are able to recognise when HA’s mental health deteriorates. They know the signs: he isolates, eats inconsistently, binge drinks, and becomes paranoid about germs and itches. When that occurs they urge him to consult his doctor. If he resists, they have in the past, and will in the future, call on the local Police to have him assessed under the Mental Health Act 2007.

39 This pattern of stability in HA’s mental health is in contrast with a period of significant instability in the earlier part of the decade following the onset of his illness. HA had a series of mental health admissions, was at times non-compliant with prescribed anti-psychotic medication, and self-harmed. Mrs A said that the worst thing HA had ever done was to harm himself. He had never threatened or done harm to anyone else.

40 Police records record their involvement in four of HA’s mental health admissions. The first, in early 2004, when he presented at a Police Station in Northern NSW seeking to surrender the keys to his motor vehicle. He is reported to have told Police:

‘I need help. I have mental health issues. If you don’t take my car I will hurt myself or someone else. I can’t take it anymore.’

He was then admitted to a psychiatric unit for assessment and treatment.

41 Mrs A told me that this event followed HA’s first mental health admission. Following his discharge he had moved to Northern NSW. Both she and QF had been aware of the situation when he became unwell. She had urged him to seek assistance and help from the Police.

42 Mrs A said that following his discharge from hospital, after that admission, HA had started living with QF and her. When he first lived with them he was not prescribed anti-psychotics.

43 The next Police involvement occurred in May 2005 when Police were called after HA allegedly ‘attempted to burn down’ a residence. This was QF’s son’s home, which HA was visiting at the time. Both QF and Mrs A dispute that HA attempted to burn down the residence. They say that HA burnt his clothes and cushion, as a result of his paranoia about germs. After this event, but before the Police were called, QF’s son contacted QF to tell him what had occurred. Mrs A said she had told QF’s son to call the Police, as HA needed to go to Hospital: he had had a lot to drink and was paranoid about his itching.
44 While it is impossible now to determine exactly what occurred without hearing from someone who was present, I think it probable that HA did burn his clothes and a cushion, disregarding the danger thereby created.

45 When Police arrived HA asked to be taken to a mental hospital so that he could admit himself. This occurred.

46 A COPS event record shows that on 10 February 2006 Senior Constable F attended at QF’s home after Mrs A rang Police saying that HA wanted to kill himself. The event record was created 10 days later on 20 February 2006. It records that:

‘Police were recalled to attended (sic) the POI's address regarding a concern for welfare. On arrival police spoke with the POI's mother who informed police the poi had made threats to cut the lock from his stepfathers gun safe, obtain a shotgun then kill anyone close by, then himself.

Police spoke with the poi who confirmed this. He was scheduled without incident at Bloomfield.’

47 In her evidence Mrs A said that she had no recollection of this event, or of having such a conversation with Senior Constable F. She did agree that Senior Constable F would have taken HA to hospital ‘two or three times’ and had some recollection of them having a discussion about the gun safe.

48 Senior Constable F, under cross-examination, did not have any independent recollection of this conversation. When pressed about the discrepancy between the date of the event and the date of the record, he said that he believed that both occurred on the same date, 20 February 2006. He later confirmed this saying that he was not at work on 10 February 2006. When challenged as to the accuracy of his conversation with Mrs A he could not say whether he made notes, but was insistent that he ‘would have recorded’ what was said.

49 Senior Constable F thought that during his time in QF’s town he ‘may have done a safekeeping inspection’ of QF’s firearms storage facilities. He agreed that he was aware that QF had firearms stored on the premises.

50 My view of this conflict of evidence is that it is probable that the conversation as recorded by Senior Constable F did occur. Mrs A did not deny such a conversation, but could not recall it. Senior Constable F’s recollection was equally unclear. The record however was made about the time of the event in question. There is nothing that causes me to regard it other than a contemporaneous record which accurately records what occurred.

51 When this event was put to QF he was unable to comment as to what occurred, as he was not there. He did say that there was no equipment at the house with which the locks on the gun safe could be cut, and that in any case the store room is locked.

52 The final Police involvement occurred in May 2006. HA had been discharged from Hospital and returned home on medication, which he refused to take. QF and Mrs A were concerned about him. One evening he was restless and said he was going to sleep in the garage. When Mrs A went to check on him in the morning she found that he had cut his neck. She called the Police. Senior Constable F attended and arranged for him to be transported to Hospital for treatment, following which he was again scheduled and admitted to a mental health unit.

53 Mrs A gave evidence about two other mental health admissions: the last of which followed his grandmother’s death in May 2007.

54 It can be seen that HA was very unwell for a period of at least four years, but, fortunately, his mental health has been relatively stable since his last admission in May 2007. His treating doctor now describes him as very stable. It is also clear that both QF and Mrs A are actively monitoring his condition and have demonstrated a willingness to intervene when he shows signs of being unwell.

55 When he was unwell I accept that he attempted to harm himself and voiced thoughts about accessing QF’s gun safe and harming himself and others. It is to be noted, however, that there is no evidence that HA has at any times sought to access QF’s gun safe, or the storeroom in which it is housed. There is also no evidence that he has been violent to, aggressive towards, or intimidated any person, let alone QF or Mrs A. I accept that he has willingly sought assistance from Police when he has been unwell. QF and Mrs A have monitored his condition, and made appropriate interventions when he has been unwell.

56 In the years that HA resided with QF, prior to the condition being imposed on QF’s firearms licence, during which time he had a series of mental health admissions, there is no evidence that the Police were concerned by the fact that HA was living in a house in which firearms were stored. This includes a period of some two and half years after HA voiced thoughts about accessing the gun safe, leading up to the imposition of the condition. That condition, it should be remembered, was imposed on the grounds of risks to the public safety occasioned by QF’s son, not HA.

57 The fact that HA has now been well enough not to be admitted to Hospital for two years, and is maintaining that stability without medication, is not contested.

58 I also accept that QF is extremely careful and assiduous with respect to firearms safety. I accept his evidence that there is nothing at his premises which would enable a person seeking access to his gun safe, assuming they could gain access to the store room, to cut the locks fitted to the gun safe.

59 On the basis of those findings I conclude that whether there is virtually no risk to the public safety, from HA, should QF continue to store and possess his firearms at his premises. While as Hennessy DP said in Ward it is not possible to be ‘totally satisfied that a person would not pose any risk to public safety’ I am satisfied that there is virtually no risk.

60 Finally, mention should be made of Ms Johnson’s submission that there is a risk of HA ‘physically prevailing’ over QF, and thereby gaining access to the gun safe. Given the evidence of HA’s behaviour when unwell, which has included self-harm but has not involved any acts, aggression towards, or intimidation of others, I think this submission speculative at best. Such conduct would be inconsistent with HA’s past pattern of behaviour, and at odds with what appears to be a respectful and mutually supporting relationship between QF and HA. I am satisfied that there is virtually no risk of this happening.

Conclusion
61 It follows that in this case the correct and preferable decision is to set aside the decision of the Commissioner of Police to impose conditions on QF’s firearms licence.