Civil and Administrative Tribunal New South Wales

• Medium Neutral Citation: Leviny v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 108
• Hearing dates: 14 July 2014
• Decision date: 24 July 2014
• Jurisdiction: Administrative and Equal Opportunity Division
• Before: Professor G.D. Walker, Senior Member

Decision

The decision under review is affirmed.

• Catchwords: Firearms - safe storage
• Legislation Cited: Civil and Administrative Tribunal Act 2013; Firearms Act 1996
• Cases Cited: Bottomley v Commissioner of Police (CoP) [2005] NSWADT 21; Cleofe v CoP [2001] NSWADT 2; CoP v Toleafoa [1999] NSWADTAP 9; Cusumano v CoP, NSW Police Service [2001] NSWADT 50; Davos v CoP, NSW Police Service [2013] NSWADT 7; Green v CoP, NSW Police Force [2014] NSWCATAD 59; Hardy v CoP, NSW Police Force [2006] NSWADT 167; Hill v CoP, NSW Police Service [2002] NSWADT 218; Leviny v CoP, NSW Police Force [2013] NSWADT 62; Leviny v CoP, NSW Police Force, [2013] NSWADTAP 34; Lynch v CoP [2006] NSWADT 80; Mills v CoP, NSW Police Force [2014] NSWCATAD 38; Petty v CoP, NSW Police Force [2003] NSWADT 20; Stranges v CoP, NSW Police Service [2004] NSWADT 221; Uzelac v CoP, Ministry of Police [2003] NSWADT 226; Vella v CoP, NSW Police Service [2003] NSWADT 91; Ward v CoP [2000] NSWADT 28.
• Category: Principal judgment
• Parties: Geoffrey W.G. Leviny (Applicant)
• Representation: G Leviny (Applicant in person); J Mattson (Respondent)
• File Number(s): 1410114

reasons for decision

1 The applicant Mr Geoffrey William Good Leviny on 11 March 2014 applied to this tribunal for a review of the respondent's decision of 24 October 2013 to refuse his application for a firearms licence. That decision had been confirmed in an internal review on 3 February 2014 (exhibit R1, tab 6c). The respondent had refused to issue a licence to the applicant on the ground that it was not in the public interest that the applicant hold a firearms licence, relying on s 11(7) of the Firearms Act 1996.

2 Mr Leviny is a farmer and grazier who operates a property a Palmer's Island, New South Wales. He is also a practical inventor with several patents to his credit. For the past seven years he has been working on the development of a new type of engine that makes use of centrifugal force in such a way, he believes, as greatly to reduce fuel consumption in a revolutionary manner.

3 The applicant had previously held a firearms licence since 1998, but it had been revoked on 19 June 2012. That revocation had come about following an incident on 7 June 2012. On the following morning, his wife had contacted the family doctor, Dr Hope and told him that she had without his knowledge hidden the applicant's Lithgow .22 rifle and air rifle and informed the doctor where she had placed them. As he was legally required to do in the circumstances as he understood them, the doctor contacted the police, who called at the house at around 10 pm that evening The police officers spoke to both the applicant and Mrs Leviny, formally seized the two rifles and also suspended the applicant's license. Subsequently, a letter of licence revocation was sent on 18 June to the applicant. The ground given by the delegate was that she was not satisfied that he would exercise continuous and responsible control over firearms and therefore that it was not in the public interest for him to continue to hold a licence (exhibit R1, tab 3c).

4 That revocation was the subject of an appeal to the Administrative Decisions Tribunal (ADT), the predecessor of this tribunal: Leviny v Commissioner of Police, New South Wales Police Force [2013] NSWADT 62. Following a hearing on 15 March 2013 before Montgomery JM, that tribunal affirmed of the revocation in its decision of 20 March 2013. On appeal, the appeal panel upheld that decision: Leviny v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 34 on 23 July 2013.

5 On the evening of 7 June 2012, the applicant had shot a hare, using a room in the house as a "hide". In daylight hours it was his practice to shoot rabbits, hares and other pests from inside the house, because in the open paddocks of the property the animals would see him and scatter. After he had finished using the rifle, he placed it in a cupboard in the dressing room with his .177 air rifle and did not return it to the gun safe in his garage.

6 What transpired next was the subject of conflicting evidence at the March 2013 hearing. Later in the evening, the applicant was in a frustrated mood over the failure of his efforts to obtain an engineer's report that he needed to lodge in order to prevent the (presumably provisional) patent over the engine from lapsing in a few days' time. There was an animated disagreement between him and his wife over whether she should telephone the engineer in question.

7 According to the respondent's version of the events, he then took the .22, placed it under his chin and said, in Mrs Leviny's presence, "I might as well blow my brains out". In view of that comment, Mrs Leviny removed the two rifles from the unlocked dressing room cupboard and hid them under the bed without the applicant's knowledge. The next morning she contacted Dr Hope and told him about the threat. She said that she and the applicant would be away from the house that day and that she had hidden the rifles under the bed. Pursuant to s 79 of the Firearms Act, Dr Hope then telephoned the police. Mrs Leviny wished that the police would confiscate the rifles.

8 The applicant, however, denied that he had placed a muzzle of the rifle under his chin with the intention of firing. He conceded that he had said words to the effect that he might as well blow his brains out, but denied having held a firearm at the time he made the statement or that he had ever held a firearm to his chin. He said this comment was merely a simple expression of frustration at being unable to find a solution to the problem concerning his invention. Mrs Leviny denied that she had told Dr Hope that the applicant had threatened self-harm in her presence or that she had seen her husband with a gun on his hand at any time on 7 June 2012. She also stated that in the 30 years she had known the applicants she had never seen him put a gun to his body, under his chin or anywhere else, threatening suicide.

9 She conceded that she had experienced a strong reaction to the comment and that she was very upset when she saw Dr Hope the next day. She accepts that because of the situation, Dr Hope might have misunderstood what she said, but maintained that she did not tell him that the applicant had threatened self-harm in her presence, or that she had told either of the police officers who came to the residence on 8 June 2012 that he had done so.

10 Montgomery JM concluded that "it is possible that both Mrs Leviny and Dr Hope are being truthful. It is possible that Dr Hope misunderstood what Mrs Leviny was saying because she was in a state of distress" (at [60]). He determined, however, that he did not need to decide that issue because the applicant's failure to secure his firearms provided sufficient cause to warrant the decision to revoke his firearms licence. He also thought that it was appropriate "that the applicant have some time without a firearms licence in which he can focus his mind on the reason for the requirements and the need for strict compliance [with safe storage rules]". He suggested that the applicant take positive steps to re-educate himself in relation to firearms law and the importance attached to the storage requirement (at [70] - [72]).

11 The appeal panel noted that the case below had been decided entirely on the ground of failure to maintain safe storage and thought it would be unproductive to revisit the events of 7 - 8 June 2012 (at [34]). After reviewing the evidence below and hearing submissions, the panel concluded that Montgomery JM's decision was correct and dismissed the appeal: Leviny v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 34 at [34].

12 Ten days after the appeal panel's decision was delivered, the applicant lodged a new application for a firearms licence (exhibit R1, tab 5a). The respondent decided on 24 October 2013 to refuse that application, and his decision was confirmed by the internal review of 3 February 2014. The applicant then appealed to this tribunal against that refusal.

13 At a directions hearing on 29 April 2014, Deputy President Hennessy directed the applicant to file and serve written submissions, affidavits and witness statements by 13 May 2014. Under cover of a letter dated 8 May 2014, the applicant filed and served some written submissions, a copy of an information in support of an application for disposal of property to be heard at Maclean Local Court, and a copy of a letter dated 19 June 2012 from a nurse in the acute care service (exhibit A1). He did not comply with the direction to file and serve affidavits and witness statements, offering no explanation.

Applicable law

14 The underlying principles of the Act are set out in s 3(1) and include the goal of improving public safety by inter alia "promoting the safe and responsible storage and use of firearms" and "imposing strict controls on the possession and use of firearms".

15 Section 11(7) states that the Commissioner may refuse to issue a licence if he considers that issuing it would be contrary to the public interest.

16 The safe storage requirements are dealt with by part 4 of the Act. Sections 39 and 40 provide as follows:

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.

40 Category A and category B licence requirements

(1) The holder of a category A or category B 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 receptacle of a type approved by the Commissioner and that is constructed of hard wood or steel and not easily penetrable,

(b) if such a receptacle weighs less than 150 kilograms when empty, it must be fixed in order to prevent its easy removal,

(c) the locks of such a receptacle must be of solid metal and be of a type approved by the Commissioner,

(d) 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 receptacle containing any such firearm,

(e) such other requirements relating to security and safe storage as may be prescribed by the regulations.

Maximum penalty: 20 penalty units or imprisonment for 12 months, 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.

The issue

17 The respondent based his case under s 11(7) on the proposition that it would be against the public interest to issue a licence to the applicant because he had previously failed to comply with the safe keeping provisions of part 4, ss 39 and 40, and might therefore infringe the law in a similar manner in the future.

18 The applicant accepted that definition of the issue in part, but declared that he wanted a ruling from the tribunal to the effect that the earlier allegations about threatened self-harm were unfounded. He said that although no longer relied on by the respondent, that narrative was still in circulation and was still referred to by way of background. It had embarrassed him and his family and was being used as a slur against his daughter, who is active in politics.

19 It was pointed out to the applicant that the tribunal has no power to make findings in relation to facts that are not in issue, and a ruling to that effect was made. Further, the internal review decision of 3 February 2014 (part exhibit R1) had made it clear that the allegations were no longer a factor in the respondent's evaluation. Nevertheless, the applicant continued to raise the matter repeatedly, and had to be reminded, with growing degrees of emphasis, about the ruling and the nature of the issue.

The evidence

20 The respondent called no oral evidence but relied on the s 58 documents (exhibit R1) and the transcripts of the ADT and appeal panel hearings.

21 The applicant gave oral evidence in which he said that his version of the 7 June 2012 events was different from that advanced by the respondent. He maintained that he had taken the rifles from their safe in the garage, walked around to the bedroom and shot a hare from the window. As the noise of the shot would have caused any other rabbits or hares in the vicinity to scatter and there was therefore no point in waiting for any others to appear, he went into another room where his computer was located in order that to check whether he had received an email about the machine.

22 Before doing so he put the rifles out of the way in a dressing room cupboard, which had been his practice for 50 years in whatever house he was occupying. His wife then insisted that they have dinner. Afterwards he went outside to see if any predators had come for the hare, but it was too dark to see. When he returned to the dressing room he saw that the rifles were no longer there and assumed that Mrs Leviny had put them away, although it was not her normal practice to do so.

23 A lively discussion ensued about whether Mrs Leviny should telephone the engineer about the patent on the engine. The applicant then returned to watch television for a while before going to bed.

24 The next day Mrs Leviny was feeling stressed and went to see the doctor, who telephoned the police, although she had told him it was not necessary to do so. She left the rifles in the house so that the police could collect them while Mr and Mrs Leviny were away in Ballina visiting a dermatologist for skin cancer tests. They had not been collected by the time they returned from Ballina, but the police in due course arrived around 10 pm. Mrs Leviny removed the rifles from under the bed and handed them to the police.

25 The applicant said he thought the rifles had been unattended for only a few minutes. It had been a grave error of judgment to assume that his wife would collect the rifles. He would make quite sure in the future that they were properly secured, because if he could not obtain a licence, he would have to give up farming. He had refreshed his knowledge of the safe storage requirements of the legislation. He had also read the relevant cases and agreed with all of them.

26 He had unloaded the rifle after using it and locked the ammunition in a secure box that had been inspected by police. He was sorry that his actions had been taken as disregarding the law. He had put the rifles aside in order to wait for the next shot opportunity. He had never had a record of failing to secure weapons and would make sure that nothing like that ever happened again.

27 In cross-examination he said that he had placed the ammunition in a drawer but, as he had said at the ADT hearing, he put it away in the box for long-term storage. He had believed that he could leave the rifles in the dressing room while awaiting the next shot, but was prepared to accept directions on the matter. Asked whether he thought his actions created a risk that a burglar or unlicensed person could gain access to the rifles, he replied that every farmer's wife was in the same position. He had only meant to be away for a minute, to check his emails, but it had ended up being an hour.

28 The applicant explained that the house had never been burgled and was very secure. Their driveway was a kilometre long, lined with an electric fence and equipped with an electronic alarm system that switched on the lights and gave a warning if anything was approaching. The way their house was constructed, the headlights of any visitor's car would shine directly into the family room and be seen from a considerable distance. Furthermore, in a house halfway up the driveway there lived an employee of his who kept a dog that barked loudly if any stranger passed by.

29 Mrs Juliet Leviny gave evidence that she had seen the rifles on 7 June 2012, but not in her husband's possession. She had hidden them because they had argued and she was upset. She thought that hiding the rifles was the only way to push her husband into a discussion. She looked for them in the dressing room cupboard because she knew that the guns were always kept there.

30 She had seen the applicant shoot from the bedroom many times, usually at dusk and at dawn. He always unloaded before going to check on the animal in case it needed a coup de grace, then returned to await the next opportunity for a shot. She had not gone to see Dr Hope because she feared her husband might self-harm, but because of the stress she felt over the invention. She wanted the doctor to talk to her husband about it, and also thought that he might prescribe her some medication.

Applicant's submissions

31 On 13 May 2014 the applicant filed some brief written submissions (part exhibit A1) which dealt entirely with his argument that the tribunal should make a finding that would expunge the lingering charge of attempted self-harm, which by virtue of s 11(4)(b) could disqualify him from holding a licence for life. He submitted that natural justice required that a charge that had been made against a person and that carried a lifetime disqualification should be determined.

In his oral submissions the applicant said that the operative word in s 39 on safe keeping was "reasonable", which means a reasonable concern for the safety of others. He thought that he had taken reasonable care in the circumstances, though he might have been wrong. When he went spotlighting and his wife was driving, the guns were always in the car and he could only do his best to maintain reasonable precautions. He argued that the respondent relied on Stranges v Commissioner of Police, New South Wales Police Service [2004] NSWADT 221 as enabling him to substitute the safe storage ground for the self-harm allegation, but in that case the applicant had breached the conditions of a security guard licence, which was therefore likely to be revoked. He appealed on the ground that the charge on which he had been convicted was now spent, and the authority thereupon changed the grounds for revocation. In the circumstances it was a reasonable substitution, but here the section was quite different and he questioned whether the respondent should be permitted to substitute the safe storage ground.

32 In any event, under s 39, not any breach of any rule could justify revocation. He was not shooting outside, but was actually using both guns at the time, including the air rifle, which was quieter and cheaper, while being quite effective against mynas.

33 The "virtually no risk" test in Ward v Commissioner of Police [2000] NSWADT 28 had to be applied in a nuanced way, as could be seen from Green v Commissioner of Police [2014] NSWCATAD 59. Ward had said that the respondent was not obliged to cancel the licence, but should consider all the relevant circumstances: at [34]. The tribunal should exercise its discretion in his favour.

34 He apologised for his bad decision and would accept guidance. His knowledge of the Act was now good and he knew the law well. But he had made an error of judgment in doing what any ordinary man would have done.

35 There was an ambiguity in s 40(1)(a) about when a firearm was "not actually being used or carried", but there was also a discretion that could be exercised. He had made a judgment that the rifles were still in use. The importance of the failure in safe keeping is an important part of the legislation. On 7 June 2012 he had not wanted to risk provoking his wife by putting the guns away. He is now well aware of the Act and had undertaken a course in order to obtain a licence. He had surrendered a .303 rifle when he no longer needed it and had also surrendered his semi-automatic shotgun.

36 He had handed over the rifles when the police had come. They did not come for a day, although they knew the house was unlocked and the rifles were not secured. The fact that they had taken no steps to secure them showed how the question of seriousness was viewed.

37 On the evening in question he had been distracted by a meal, but he was now well aware of the law. He had been an international competitive shooter and had won many trophies, so he knew the rules. He had now been without his rifles for two years. It all boiled down to whether he was still engaged in shooting while allowing time for rabbits and hares to return within range and having his dinner.

38 The alleged self-harm threat could not have happened, but everyone was treating it as if it had, and it had coloured the handling of his application. In addition, it had affected his daughter's political career.

Consideration

39 The tribunal's function in proceedings of this nature is to make the correct and preferable decision, taking into account all the material considered by the original decision-maker together with any further relevant material: Petty v Commissioner of Police, New South Wales Police Force [2003] NSWADT 20 at [4]; Drake v Minister of Immigration and Ethnic Affairs (1979) 2 ALD 20 at 77.

40 In Hardy v Commissioner of Police, New South Wales Police Force [2006] NSWADT 167, the ADT, the predecessor of this tribunal, explained that proceedings such as these are non-adversarial in nature and there is no onus of proof in the sense that it applies to other legal proceedings. "Accordingly,... the applicant does not take the responsibility of having to prove the case, nor does he cause the Commissioner to have to prove a case" (at [15]).

41 These proceedings concern the safe keeping provisions, which are set out above. The licensee is required to take "all reasonable precautions to ensure" the safe storage of the firearm, including "that it does not come into the possession of a person who is not authorised to possess the firearm"(s 39(1)(c)). It is not disputed that Mrs Leviny did not have a licence at the relevant time. The provisions also require that "when any such firearm is not actually being used or carried, it must be stored in a locked receptacle of a type approved by the Commissioner": s 40(1)(a). Ammunition must be stored in a locked container kept separate from the firearm: s 40(1)(d). As Mr Mattson pointed out, the legislation places onerous and important obligations on licence holders to maintain the security of firearms.

42 Throughout the history of these proceedings, including in his application and at the current hearing, the applicant has disputed the power of the respondent to substitute the safe storage ground for the self-harm ground initially relied on, and sought at the hearing to distinguish Stranges from the present case. That argument was put to rest by the appeal panel in its decision of 23 July 2013, when it declared:

There is no obligation on the administrator to confine its determination at the internal review stage to the grounds relied upon in the primary determination. It was open to the administrator to widen the grounds, as occurred in this instance, at the internal review stage. This can also occur at the external review stage. Due process dictates that the review applicant must be afforded a reasonable opportunity to reply to any extended or varied case" (at [25]).

43 In this case the applicant has had that opportunity and has been debating the point at every stage for over a year.

44 The respondent's case is that the tribunal should consider that the issue of a licence to the applicant would be contrary to the public interest within the meaning of s 11(7) of the Act. The power to refuse to issue a licence under that provision is discretionary.

45 The ADT Appeal Panel considered the meaning of "public interest" in Commissioner of Police v Toleafoa [1999] NSWADTAP 9, 25, which dealt with a security licence. The appeal panel declared that the public interest is "an inherently broad concept giving [the decision-maker] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual". The ADT held that those comments apply equally to firearms legislation: Ward, [33]. The tribunal has also held that the discretion should be exercised in such a way as to promote the objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service, [2001] NSWADT 50, [23].

46 The public interest factor under s 11(7) relied on by the Commissioner in this case is failure to comply with safe storage requirements in ss 39 and 40. Illustrating how the discretion operates in this context is Lynch v Commissioner of Police, [2006] NSWADT 80, in which Montgomery JM considered the case of a primary producer who had received a discharge under s 10 of the Crimes (Sentencing Procedures) Act 1999 for having an unregistered firearm and failure to store firearms safely. Some of his guns had been registered and his record was otherwise incident-free. Affirming his licence cancellation on public interest grounds, the tribunal stated that the applicant appeared to lack an understanding of the reasoning behind the statutory storage requirements. He was unlikely to reoffend in the same manner, but could do so in other ways. Failure to comply with storage requirements led to licence refusal on public interest grounds in Vella v Commissioner of Police, New South Wales Police Service [2003] NSWADT 91.

47 The tribunal's consideration should be guided by the fact 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: "As mandated by the legislation, public safety is to be given paramount consideration": Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218, at [24]. "The legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences": Davos v Commissioner of Police, New South Wales Police Force [2013] NSWADT 7, [117]. Contravention of the safe storage requirements is fundamental, as those requirements go to the crux of the principles and objectives of the Act: Cleofe v Commissioner of Police [2001] NSWADT 2. Even where storage contraventions lie at the lower end of the scale of seriousness, they can evidence an attitude that is still significant when determining whether a person should have a licence: Bottomley v Commissioner of Police [2005] NSWADT 211 at [18] - [19].

48 Public safety considerations relevant to an evaluation of a safe storage contravention were helpfully set out by Hennessy DP in Uzelac v Commissioner of Police, Ministry of Police [2003] NSWADT 226 at [19]:

• 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;

• the reason the person has a firearms licence;

• 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;

• the discretion must be exercised keeping in mind the nature of the conduct and the principles and objects of the Act.

49 Those criteria were applied by this tribunal in Mills v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 38 at [37].

50 As regards criterion (1), the applicant put the rifles in a dressing room cupboard after shooting the hare, then proceeded to check his emails and have dinner, after which he found that the rifles were gone. He argued that because he was waiting for the rabbits and hares to return, he was still using the rifle within the meaning of s 40(1)(a), giving the analogy of a hunter who puts a rifle down while dressing rabbits.

The ADT at the earlier hearing considered the possibility of giving a broader interpretation to "being used or carried" on such grounds. There does indeed appear to be a reasonable argument along those lines as, for example, the provision nowhere mentions cleaning, an essential part of firearm use after each firing or handling, as rust can develop overnight. But the ADT held, correctly in my view, that even assuming a broader interpretation, the applicant had still left the firearms unsecured and his wife, who was unlicensed, in fact had gained access to them and hidden them, thereby demonstrating that he was not exercising continuous control over them. The fact that Mrs Leviny probably presents zero risk to public safety is not relevant, as strict compliance is required.

51 Mr Leviny explained that he assumed his wife had locked the rifles away, but the law places the responsibility on him and he cannot delegate it, much less assume that another (unlicensed) person has discharged it. In that connection, incidentally, it seems rather odd that a seasoned and expert shooter such as the applicant would not personally ensure that the rifles had been cleaned before being put away. Further, he assumed that his wife had locked the rifles away, although he conceded in his oral evidence that it was not her practice to do so.

52 The applicant states that he trusts his wife and that every farmer's wife is in the position where sooner or later she will discover, even without trying, where the keys are located and consequently will technically have access to the firearms. The statutory requirements, he maintains, are unworkable in farming households. But the Legislature has elected to impose detailed and prescriptive requirements on all licensees. For many years after licences were first introduced, farmers who kept a gun for use on their own property were exempt from the then licensing requirements. That is no longer the case, however, and the law leaves no discretion to licensees about the manner of safe keeping.

53 In relation to criterion (2), the length of time the rifles were not stored safely was about 30 hours, a not inconsiderable period. The applicant says that for most of that time, until about 5 pm after their return from Ballina when his wife explained the true position, he had been under the impression that they were stored in the gun safe. But as he made no attempt to ascertain whether or not that was the case, that does not assist his case.

54 Criterion (3), the potential or real danger posed, is insubstantial, according to the applicant, because the house is situated at the end of a kilometre-long driveway with an electric fence and an electronic warning system that turns on the lights. The headlights of any approaching vehicle shine directly into their living room. Any intending wrongdoer would also have to pass by a house halfway up the driveway occupied by the applicant's employee, who owns a dog that barks loudly at all passing visitors. He could also not gain access to the dressing room cupboard without passing by the place where the applicant was sitting.

55 Whatever the weight of those facts when the applicant was at home, it was a different matter when he was away in Ballina for most of 8 June, leaving the house empty and unlocked. Although the rifles were hidden, the risk of danger to the public safety cannot be discounted, even if, given the isolated nature of the location, it was not substantial.

56 The applicant's previous conduct in relation to firearms storage comes within criterion (4). At the hearing in the instant matter, the applicant gave oral evidence to the effect that it had been his practice for 50 years to keep his firearms in a dressing room cupboard in any house he was living in. Mrs Leviny said in the witness box that she had looked for the rifles in the dressing room cupboard because she knew they were always kept there. That rather suggests that his relaxed approach to secure storage was not a recent development.

57 In the ADT proceedings, Mr Leviny said in answer to a question in cross-examination that he was aware of his obligation to ensure that firearms do not come into the possession of an unlicensed person. He admitted that under his then current licence he had allowed his grandson to shoot with the air rifle He also said, "I take back that last comment [his earlier comment about not allowing unlicensed persons access to guns] to an extent. I have taught, for instance, my daughters how to fire a rifle and none of them have licences". Mr Mattson then asked, "And you allow them to possess a firearm?". To which he replied, "To hold it and try firing, yes". He then resiled somewhat from that position, saying it was when they were children: "There weren't such things as licences" (Transcript 15 March 2013 (TS1), lines 918 to 925, 933). Despite the attempt at qualification, that appears to be another indication of his impatience with strict modern controls, leading to a tendency to selective compliance.

58 It is quite true, as he said, that in the social conditions of the 1950s, when he began shooting, the climate was far different. In those days it was even permissible to board an airline flight carrying a gun in a case, provided that it was unloaded (the ammunition being a fire risk). But that was then, and this is now. He assured the tribunal that he now understands the storage requirements and intends to comply with them, but the fact that throughout the various stages of these proceedings he has consistently maintained that he did not fail to take reasonable care suggests that he has not fully internalized the applicable rules. The most he will say is that he made an error of judgment. There appears to be an element of cognitive dissonance present that could lead to selective compliance in the future.

59 As to criterion (5), the applicant states that he has studied the statutory requirements and the relevant cases, fully agrees with the rules laid down and undertakes to comply strictly with them in the future. This consideration is related to the previous one. Clearly, the applicant now understands the storage requirements, but in light of the apparent conflict described above, the tribunal cannot overlook the possibility that he would relax his compliance with the rules in the future if he thought them inappropriate and might contravene them, perhaps not in the same way as in this case, but in some other respect.

60 Criterion (6) is the reason the person has a firearms licence. As a working farmer and grazier, the applicant could scarcely have a better reason for holding a licence.

61 Criterion (7) stipulates that if the breaches are trivial or excusable, as distinct from fundamental, there is less likelihood of a risk to public safety. While not trivial, the applicant's breaches on 7 and 8 June 2012 could be viewed as minor or excusable, at least in isolation. The problem, as noted above, is that his conduct and statements give rise to reservations about his genuine commitment to strict compliance. As Mr Mattson pointed out, the applicant lodged the instant application only 10 days after the appeal panel's decision was delivered, without making any effort to comply with Montgomery JM's suggestions as to how he should focus on the statutory obligations of licensees. While he has familiarized himself with the law, objective evidence of a permanent change in attitude and likely conduct is still lacking.

62 Finally, criterion (8) requires that the discretion be exercised keeping in mind the nature of the conduct and the principles and objects of the Act.

63 Before discussing that consideration, however, it is necessary to deal with the specific question of ammunition storage.

64 At the ADT hearing the applicant said that after shooting on 7 June he had "either put [the rifles] in the cupboard or up against, up against the wall in the same room. Certainly I had locked the ammunition away...." (TS1, line 1273). Earlier, however, he had said "I put ammunition on the short term in a certain drawer. On the long-term I put it in a lock-up box...." (TS1, line 1006). Further, he did not check to see where the ammunition was when he discovered that the rifles were no longer in the cupboard.

65 He did not explain (and was not asked) what he meant by "short term" storage in the drawer, such as whether it signified an hour or a week. Asked to say more about the drawer in question, he was oddly reticent and declined to answer: "I don't want everyone knowing where the security, where I put ammunition or I don't" (ibid.). Pressed further, he replied, "Look, I'm not going to tell you where they are. I'm sorry that's my private business. I've answered your question. They were not in the same drawer. They were in the same room" (TS1, line 1012).

66 A number of points emerge from that evidence. First, there are clear inconsistencies that have not been reconciled between whether he locked the ammunition away or merely put it in a drawer. Next, ammunition storage by a licensee is not a "private matter", being subject to inspection by police performing a firearms audit. Next, the applicant's reluctance to say where the drawer was situated is difficult to reconcile with his claim that the drawer was only used for "short-term" storage. In any event, he could use a different place.

67 Finally, his claimed concern over the security of the drawer contrasts with his dismissal of any suggestion of a security risk in placing the rifles in the dressing room cupboard. If potential thieves were unlikely to appropriate his rifles, they would be even less likely to brave the kilometre-long driveway, the electric fence, the electronic warning system and the unfriendly interest of the Cerberus up the road on the off-chance of purloining some cheap and commonplace .22 rounds, even assuming that they were still in "short-term" storage. The applicant's evidence concerning compliance with ammunition storage requirements is thus less than entirely satisfactory.

68 Returning now to criterion (8) and the duty to exercise the discretion in light of the objects of the Act, the evidence for and against the grant of a licence may be summarized. On the one hand, the applicant is an expert and veteran shooter with an unblemished prior safety record who has won a number of trophies in international competitions. He is unlikely to neglect the established rules of safe firearm handling. His contravention of the storage requirements, while not insignificant, is of a lower order of gravity. A consultant psychologist's report by Dr Hase concludes that the applicant poses no threat to the community or himself and from a psychological perspective could hold a shooter's licence and be permitted to have possession of firearms. He is an intelligent man who understands the statutory requirements and undertakes to follow them in the future.

69 As against that, his evidence contains certain anomalies that leave some doubts about his recollection of the events of 7 and 8 June 2012. Though he understands the legal requirements for safe storage, he interprets them in an idiosyncratic way and still maintains that he took reasonable precautions at the time. Though his contraventions lie at the lower end of the scale, as the tribunal said in Bottomley, such failings may "evidence an attitude that is still significant" (at [19]). One can therefore not exclude the possibility of selective compliance in the future (and his unexplained failure to comply with tribunal directions may underline that possibility). Further, he did not accept Montgomery JM's injunction to "have some time without a firearms licence in which he can focus his mind on the reason for the requirements and the need for strict compliance", as well as "take positive steps to re-educate himself in regard to the legislative regime". Instead, he reapplied for a licence only 10 days after his appeal to the appeal panel was dismissed (at [70], [72]).

70 Consequently, like the ADT, this tribunal cannot be satisfied that "there would be virtually no risk to the public or that the public would be comfortable with the applicant holding a firearms licence" (at [71]). I also agree with Montgomery JM that it is appropriate for the applicant to have some time without a firearms licence in which he can focus his mind on the reason for the requirements and the need for strict compliance. It is not enough, in my view, to read the legislation and some cases. There needs to be some objective evidence. While the tribunal cannot lay down a syllabus for such a program, one might think that proof of one or more sessions with a club instructor on the specific matter of safe storage could be relevant. If the applicant were to reapply in the new year with some objective evidence and was able to satisfy the Commissioner that he fully accepts the obligation of strict compliance with the safe storage requirements, the discretion might be exercised in his favour. For the present, however, he should not have a licence.

71 The decision under review is affirmed.

 

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar

Decision last updated: 24 July 2014