Josic v Commissioner of Police, NSW Police Force

[2013] NSWADT 259

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Josic v Commissioner of Police, NSW Police Force [2013] NSWADT 259
Hearing dates:	14 October 2013
Decision date:	19 November 2013
Jurisdiction:	General Division
Before:	Judicial Member Naida Isenberg
Decision:	The decision under review is affirmed
Catchwords:	Firearms licence -public interest
Legislation Cited:	Firearms Act 1996 Administrative Decision Tribunal Act 1997
Cases Cited:	Shi v Migration Agents Registration Authority [2008] HCA 31 Blissett v Commissioner of Police[2006] NSWADT 114 Wiltshire v Commissioner of Police, New South Wales PoliceHYPERLINK " \o "View Case"[2005] NSWADT 75 Hill v Commissioner of Police, New South Wales Police Service[2002] NSWADT 218 Sawires v Commissioner of Police [2010] NSWADT 4 Ward v Commissioner of Police, New South Wales Police ServiceHYPERLINK " \o "View Case"[2000] NSWADT 28 Tannous v Commissioner of Police [2011] NSWADT 116
Category:	Principal judgment
Parties:	Dimitrje Josic (Applicant) Commissioner of Police, NSW Police Force (Respondent)
File Number(s):	133212

reasons for decision

Background

1. The Respondent decided to revoke the firearms licence of the Applicant, Dimitrije Josic. He sought internal review of that decision, but the decision was affirmed on the basis that it was not in the public interest that he continue to hold a firearms licence. He has applied for review of the Respondent's decision.

Relevant Legislation

1. The general principles of the Firearms Act 1996 ('the Act') are set out in s.3:

3 Principles and objects of Act

(1) The underlying principles of this Act are:

(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and

(b) to improve public safety:

(i) by imposing strict controls on the possession and use of firearms, and

(ii) by promoting the safe and responsible storage and use of firearms, and

(c) to facilitate a national approach to the control of firearms.

(2) The objects of this Act are as follows:

(a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,

(b) to establish an integrated licensing and registration scheme for all firearms,

(c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,

(d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms,

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

(f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.

1. Section 24 of the Act sets out the bases on which a licence is revoked. Section 24(2)(c) provides that a licence may be revoked if,in the opinion of the Commissioner the licensee is no longer a fit and proper person to hold the licence. Section 24(2)(d) of the Act provides that a licence may be revoked for any other reason prescribed in the regulations. Clause 19 of the regulations provides that a licence may be revoked if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.

1. Section 63 of the Administrative Decision Tribunal Act 1997('the ADT Act') provides 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 restricted to a consideration of the material that was before the Commissioner, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31.

EVIDENCE

1. The Respondent provided a bundle of documents under s.58 of the ADT Act. Included in those documents was a copy of the application and also of the Applicant's criminal and traffic history.

1. The Applicant gave evidence as did one of his sons, Boyon Josic('Boyon'). A number of character references were tendered.

CONSIDERATION

1. The Respondent submitted that the Applicant is not a fit and proper person to hold a firearms licence and cannot be trusted to have possession of firearms without danger to public safety, especially the safety and wellbeing of his son Bosko Josic ('Bosko') and Jodie-Lee Nichols or to the peace: s.11(3)(a) and 24(c) of the Act. The Respondent also asserted that it is not in the public interest for the licensee to continue to hold a firearms licence: s.24(2)(d) and cl.19 of the regulations.

1. The Respondent relied on the Applicant's history of convictions, findings of guilt and allegations relating to offences against the person, and apprehended violence orders; and his long history of convictions and findings of guilt in relation to driving while under the influence of alcohol or while his driver's license was suspended.

The Applicant's history of convictions, findings of guilt and allegations relating to offences against the person, and apprehended violence orders

1. The Respondent particularly relied on several incidents as demonstrating that it is not in the public interest that the applicant continue to hold a licence. The Applicant was invited to comment in relation to each.

1. On 22 June 1997 the Applicant was served with an interim apprehended violence order after allegedly assaulting Bosko on 7 June 1997. The offence of common assault was found to be proven but no conviction was recorded and the Applicant was placed on a recognizance bond of $500, with orders not to assault, molest or harass Bosko.

1. The Applicant said he had pleaded guilty to the charge but said he had only 'spanked' Bosko, then aged 16, because he was stealing and not going to school. Bosko's behaviour was upsetting him and his then wife. His attention was invited to the police facts sheet in relation to the charge to which he had pleaded guilty, which recorded a very different account. The argument was said to have been precipitated by the Applicant's derogatory comments about his former wife, Bosko's mother and Bosko's defence of his mother. The Applicant was alleged to have slapped Bosko across the face, hit him such that he fell to the ground, grabbed him by the hair and scratched his face and arm. This was accompanied by the Applicant's shouting and swearing. The Applicant specifically denied swearing at his son. The Applicant said that he had pleaded guilty on the advice of his solicitor. The altercation was said to have been witnessed by Bosko's then girlfriend, who presumably would have been able to give evidence as to her observations had she been called upon to do so.

1. On 19 August 2000 an interim apprehended violence order was issued against the Applicant for the protection of the Bosko, Boyan and Obrenija Josic, his then wife. The Applicant said that anyone can complain to police and they will get an AVO. He said Bosko was nagging his mother about the Applicant and had attacked her. He said Bosko had come to his place with a carload of stolen goods and he, the Applicant had evicted him. Bosko called the police. He said Boyon was included because Bosko had told his mother and maybe she had arranged for Boyon to be included.

1. Boyon said he was only aged about 9 or 10 at the time. He was never threatened himself at this, or any other time. He did not see his father often because, he understood his father was aggressive with his mother and Bosko. He understood that at the time Boskso was in rehabilitation and would steal from the family. He was very unreliable and in with the wrong crowd. He would do crazy things.

1. The Applicant said that as a result of the AVOs against him he was unable to go near Bosko who then got in with a bad crowd and took drugs because he was missing out on his parental guidance.

1. On 13 March 2005 the Applicant allegedly assaulted Bosko, which resulted in the Applicant being served with an interim apprehended violence order, and subsequently being subject to an apprehended violence order from 15 March 2005 to 15 March 2007. The Applicant was charged with one count each of assault occasioning bodily harm and common assault, but the charges were dismissed when the 'witnesses', presumably Bosko and his girlfriend, failed to appear at the hearing.

1. According to the police fact sheet the Applicant, while affected by alcohol, had punched Bosko on the ear, which became red and swollen and created hearing difficulties. Bosko also received a cut on the knuckle of one hand.

1. The Applicant said he had tenants in one of his properties and Bosko moved in and was 'squatting' there. The Applicant said he evicted Bosko and secured the back door but Bosko axed down the door. His girlfriend and her brother were there and they 'are junkies too'. He denied assaulting Bosko. When asked to explain how Bosko might have sustained an injury to his ear and knuckle, he said that he must have hurt himself while unloading the 4WD with the stolen goods on board.

1. A provisional apprehended violence order was issued against the Applicant from 25 May 2009 to 22 June 2009 for the protection of Bosko. According to the police report there appears to have been an altercation during which the Applicant had attempted to evict Bosko from premises the Applicant owned.

1. The Applicant said he could not recall the event that led to the AVO but thought it might have been when Bosko axed the door down. He said that if had sought an AVO against Bosko he would lose his firearms licence, irrespective of the fact that he was the victim.

1. In cross-examination the Applicant was referred to the police report that said that he had 'pulled a revolver'. (Another entry in relation to the same event refers only to a 'firearm'.) The Applicant denied this to be the case and said Bosko had made it up. He said that his brother and his brother's boss were there and could verify his account. He said that 3 months ago Bosko had made the same allegation. Boyon said that his father does not even own 'a revolver'. The Applicant's evidence was that he owns multiple firearms, some of which, from his description, could to a lay observer, be described as 'a revolver'.

1. On 9 October 2012 Jodie-Lee Nicholls' alleged to police that the Applicant had made threats to harm her, which allegations resulted in a provisional apprehended violence order being issued against the Applicant from 10 October 2012 until 7 November 2012. The Applicant was subject to an interim apprehended violence order from 23 October 2012 for the protection of Ms Nicholls; and he was charged with common assault - domestic violence, which charge was ultimately dismissed because of the victim's failure to attend court to give evidence.

1. According to the police brief of evidence, Ms Nicholls and the Applicant had been in a domestic relationship for about 2 years and she had lived at the Applicant's home from time to time. There was an altercation and the Applicant was alleged to have sworn at her and threatened to kill her and to 'blow [her] head off'. In addition he was alleged to have attempted to punch her in the face which she blocked, and received injuries to her wrist and hand. After she phoned the police he again allegedly threatened to kill her.

1. The Applicant said he had known Ms Nicholls when she was a child, and she is now about 40. He met her again by chance at a restaurant and it was not until it was 'too late' that he came to realise she was a junkie and a prostitute. She kept coming to his home. Once she smashed the window to get inside, but he could not remember when that was. On 9 October 2012 she broke into his house and he called the police. She said she wanted to get her handbag, but he said she had put it there. She used a wheelie bin to reach the window, and the next day the Applicant found a rock he said she used to break the window. He also found her footprints and a fingerprint on the window, and a 'scrape of skin' on the wall. He said she made up the whole story.

1. In cross-examination he was shown the photographs of Ms Nicholls' injuries. He said she must have hurt herself when she fell off the wheelie bin and that the scratch was from the bricks. He said in the photographs that she 'didn't look upset'. He denied that he her had caused her injuries, stating 'I don't hit women'. He said he was across the road with some Middle Eastern people and they heard the banging and screaming and gave the police an account consistent with his. He was unable to explain why, notwithstanding that evidence, the police preferred Ms Nicholls' account to theirs. He thought it was terrible that the police had prosecuted him on the basis of her accusations. He does not know where the Middle Eastern people are.

1. Boyon said the he also has AVOs against his brother because Bosko has been violent towards him also. He understands him to use ice, cocaine, heroin and other drugs. In 2008 Bosko was diagnosed with schizophrenia. That year, he said, Bosko tried to get him to jump off a balcony after holding Boyon and two friends 'hostage'. At some stage he knew Bosko to have threatened their mother with a machete. He would also bring weapons home.

1. Boyon said he had never seen his father and Bosko together but had heard there had been altercations. He did not know if there had been actual violence but knew there to have been 'aggressive incidents' and understood Bosko to be the aggressor.

1. Rather than directly addressing the criminal matters referred to above, the Applicant sought in his evidence, to downplay the nature of his conduct by submitting that, with the exception of the 'spanking', the conduct was provoked. There is evidence the Applicant had a volatile relationship with members of the community, and in particular, his son Bosko. He has used abusive language and has been convicted of common assault. He has reportedly made verbal threats against the life of others. It is unclear whether he would actually act on those threats, but they are very explicit. The Applicant has been the subject of AVOs which suggests to me that the threats were thought to be serious by Police and the Applicants for those AVOs.

History of convictions and findings of guilt in relation to driving while under the influence of alcohol or while his driver's licence was suspended

1. The Respondent submitted that the Applicant's long history of driving while under the influence of alcohol or while his driver's licence was suspended demonstrates the Applicant's previous inability or unwillingness to comply with his legal obligations and the likelihood that he is still unable and unwilling to disregard those obligations. In particular the Respondent relied on 4 convictions of driving in mid or high range prescribed concentration of alcohol (1992, 2003 and 2011) and a conviction for driving while his driver's licence was suspended (2001).

1. The Applicant was convicted of driving with a middle-range prescribed concentration of alcohol offence in September 1992. He was fined $300 and disqualified from driving for 4 months. The Applicant said that he had had a couple of drinks while working on his car.

1. The Applicant was again convicted of driving with a high-range prescribed concentration of alcohol on 12 November 2003, for which he was fined $250 and disqualified from driving for a period of 12 months. The Applicant said he had been working on his car all day until 02.15 and had driven it round the block to test it when a patrol car pulled him over.

1. The Applicant was convicted once more of driving with a mid-range prescribed concentration of alcohol on 15 February 2011, for which he was placed on a 12 month good behaviour bond and fined $250 and disqualified from driving for a period of12 months. The District Court dismissed the Applicant's appeal.

1. The Applicant said that he had gone on his motorcycle to buy vegetables and then went to a friend's to celebrate the birth of his child. There had allegedly been an accident and the police asked him to bring his motorcycle, which was garaged about 70 metres away, to the police station. There he allegedly admitted to consuming 3 drinks 'bigger than nips'. He claimed the police officer had lied.

1. On 26 November 2001 the Applicant was convicted of driving while his driver's licence was suspended, for which he was fined $700 and disqualified from driving for of 12 months. On appeal, the District Court found the Applicant guilty, but dismissed the charge without conviction pursuant to s.10 of the Crimes (Sentencing Procedure) Act 1999.The Applicant had claimed that he had been informed by the RTA that he could continue to drive.

1. The Applicant in relation to one of the offences that a friend was driving the car but as he was the owner he was responsible.

1. The Applicant has been driving for some years, since about 1980 or earlier. Since that time he has lost his driver's licence several times. Since 1992 he has been disqualified from driving 3 times - the most recent in 2011 - all for driving with a mid to high range prescribed concentration of alcohol. His tendency to abuse alcohol is somewhat supported by the observations of police, in the police reports in relation to the AVOs and charges. Of particular concern in the context of consideration of whether the Applicant is a fit and proper person, is his driving while his driver's licence was suspended in 2001.By breaching traffic laws the Applicant has demonstrated a general disregard for licensing schemes and public safety. In Tannous v Commissioner of Police [2011] NSWADT 116 at [32] and [37] the Tribunal held that traffic laws and regulations are aimed at ensuring public safety and that repeated breaches of those laws indicates a disregard for regulatory schemes with that very aim, such as the firearms legislation. That conduct suggests to me a disregard for not only the safety scheme of the road rules, but also a failure to acknowledge the consequences of a breach of those rules.

Applicant's references

1. At the hearing the Applicant tendered a number of references.

1. In relation to Dr Fernando he said that he had known him since they were teenagers but he was unaware of his convictions or AVOs.

1. The Applicant said that Mr Pettett, who used to live nearby, knew about the incident involving Ms Nicholls, and notwithstanding he had seen the police come to the Applicant's home on a number of occasions, had still considered him as 'one of the best neighbours in Harris Park'.

1. Dr Sarian described him 'always calm' and, according to the Applicant, knows about the incident involving Ms Nicholls and also about Bosko.

1. There was also a reference by Laurie Ferguson, MP from 2005. Mr Ferguson referred to 'an AVO', but the Applicant said he knew about the previous AVOs. Another 'character' reference was provided by Mr Ferguson this year but says nothing about the circumstances surrounding the Nicholls' incident. The Applicant said he had explained it to Mr Ferguson but he had declined to mention it.

1. The Applicant also provided, in support of his internal review application, a reference from his second wife to the effect that the Applicant had never been violent towards her, their child or any of their mutual friends. She said he is not a violent person and had had never known him to be physically violent towards anybody. She also wrote that she had never known him to make threats to anybody.

Conclusion

1. Hunting is one of the Applicant's interests and he would like to be able to go hunting with his sons. However, an applicant's personal interest in having his licence cannot outweigh the public interest: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [22].

1. A firearms licence is a privilege and not a right. Responsibilities of licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them: Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75 at [25].

1. The Applicant's evidence was that he currently has 12 firearms of various types, which he uses for different purposes, such as hunting for small or large game.He has held a firearmslicence for 34 years, since he was 18. He likes to go hunting while with friends and Boyon. He would like to take his youngest son.

1. As to the weight to be given to the references provided by the Applicant I consider little weight can be attached to those references because it is unclear, apart from the Applicant's assertions, whether the referees were aware of the Applicant's history and whether, despite that history, they still believe the person to be of good fame and character: Sawires v Commissioner of Police [2010] NSWADT 4 at [52] and [53].

1. Since 1997 several AVOs have been issued against the Applicant. He has been charged with several offences, some of which related to domestic violence issues, and some were driving offences. Alcohol has frequently been involved in both types of offences. The Applicant has been in long-standing conflict with one of his sons and there have been occasions when he has sought AVOs against his son. There was evidence that his son also has a history of violence, and likely drug-taking. The Applicant's driving record is of less significance but does demonstrate a continuing disregard for safety laws.

1. I noted above that his last alteraction giving rise to charges was only last year and that his last motor vehicle incident was only the year before. In light of his history, I cannot be satisfied that the Applicant will not reoffend: Blissett v Commissioner of Police [2006] NSWADT 114 at [31].

1. The Applicant has had a number of serious charges. It may be that each event was precipitated by the conduct of others as the Applicant claims. It remains, however, that, on the evidence, he appears to have retaliated when provoked. There is evidence of ongoing volatile relationships with some others, especially Bosko. There was evidence of making of threats. As recently as last year, he reportedly threatened to kill Ms Nicholls. Given the opportunity, I cannot be assured the Applicant would not use a firearm when provoked.

1. Based on the facts and circumstances discussed above in relation to his criminal history, his continual disregard for licensing regimes and public safety, and his volatile relationships with others, I cannot be confident that the Applicant would continue to possess and use firearms only in accordance with the strict legislative requirements, especially if provoked. 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, at [28], DP Hennessy said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk". I cannot be so satisfied.

1. I find that it is not in the public interest that the Applicant continue to hold a firearms licence.

DECISION

1. The decision under review is affirmed.

**********