HAYES and COMMISSIONER OF POLICE

[2023] WASAT 18

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: FIREARMS ACT 1973 (WA)

CITATION:   HAYES and COMMISSIONER OF POLICE [2023] WASAT 18

MEMBER:   MS KY LOH, MEMBER

HEARD:   30 JANUARY 2023

DELIVERED          :   16 MARCH 2023

FILE NO/S:   CC 1396 of 2022

BETWEEN:   DARSHEN HAYES

Applicant

AND

COMMISSIONER OF POLICE

Respondent

Catchwords:

Firearm licence - Question of whether applicant is a fit and proper person - Whether criminal history solely determinative of question - Significance of public safety consideration

Legislation:

Community Protection (Offender Reporting) Act 2004 (WA), Pt 3, s 63(1), s85G
Criminal Code (WA), s 3, s 5
Criminal Procedure Act 2004 (WA), s 3(1)
Firearms Act 1973 (WA), s 11, s 11(1), s 11(1)(a), s 11(1)(b), s 11(2), s 11(3), s11(3)(a), s 11(5), s 11(6), s 11(6)(a), s 11A, s 11B, s 11C, s 16(1), s 18, s18(4a)(a), s 18(4a)(c), s 20(1)(a)(iii), s 22
State Administrative Tribunal Act 2004 (WA), s 17, s 27(1), s 27(2), s27(3)

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Applicant	:	R Keating
Respondent	:	G Coffie

Solicitors:

Applicant	:	Seamus Rafferty Barristers & Solicitors
Respondent	:	Commissioner of Police

Case(s) referred to in decision(s):

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

Binns v Gardiner [2004] WASCA 275

Hughes & Vale Pty Ltd v New South Wales [No 2] [1955] HCA 28; (1955) 93 CLR 127

Knight v Commissioner of Police [2011] WASC 93

Minitti v Commissioner of Police [2010] WASCA 198

Penketh v Commissioner of Police [2010] WASC 254

Re Jones; Ex parte The Commissioner of Police [1999] WASCA 246

Schamotta v The Queen [2002] WASCA 262

Tavelli v Johnson (unreported, WASC, Library No 960693, 25 November 1996)

Thayli Pty Ltd v Commissioner of Police [2021] WASCA 46

Wignall and Commissioner of Police [2006] WASAT 206

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. In June 2022, the holder of a firearm licence, Mr Darshen Hayes, applied to the Commissioner for Police for a licence to hold an additional two firearms under the Firearms Act 1973 (WA) (the Act).

2. The Commissioner refused that application, and revoked Mr Hayes' existing firearm licence, having formed the opinion that Mr Hayes was not a fit and proper person to hold a firearm licence.

3. The Commissioner says that Mr Hayes has a history of serious criminal offending which is indicative of his character as well as a general disregard for the law, and that he has a tendency towards violent offending.

4. Mr Hayes' criminal history includes convictions for sexual offences, assaults, failures to comply with reporting obligations under the Community Protection (Offender Reporting) Act 2004 (WA) (ProtectionAct), drug possession and unlawfully obtained property.

5. Mr Hayes says that his more recent criminal offending does not indicate that he poses a risk or threat to the public; in any event his criminal history is not solely determinative of an assessment of his character.

6. He has strong ties to country, has stable employment, and uses firearms responsibly to hunt vermin on rural property as a cultural pursuit.

7. For reasons set out below, I am satisfied that Mr Hayes' criminal offending, in particular, his recent convictions, demonstrates a continued disregard for the law, increasing the risk of him engaging in conduct that may put public safety in jeopardy.

8. I am satisfied that he is not a fit and proper person to hold a firearm licence and will affirm the Commissioner's decisions.

Issue for determination

1. The primary issue for determination is whether Mr Hayes is a fit and proper person to hold a firearm licence.

Background

1. The following background facts are not in dispute between the parties or are otherwise based on uncontentious documents.

Firearm licence applications

1. In January 2018, Mr Hayes applied for a firearm licence in respect of four firearms.

2. On 7 March 2018, the Commissioner granted the firearm licence number 10018438 in respect of those firearms for a 3-year period expiring on 6 March 2021.

3. Prior to that expiry period, the Commissioner extended Mr Hayes' firearm licence for a 2-year period, expiring on 6 March 2023.

4. On 24 June 2022, Mr Hayes applied for a firearm licence for two additional firearms (application number 202208440AFIRZ).

5. On 25 August 2022, the Commissioner rejected Mr Hayes' application 202208440AFIRZ, and revoked Mr Hayes' existing firearm licence.

Criminal record

1. The following table is a summary of Mr Hayes' criminal convictions:

Offence Date	Offence	Sentence	Court
-	Disorderly behaviour in public	17.02.06:  3 months Conditional Release Order (Adult), $200 undertaking, spent conviction	South Hedland Magistrates Court
10.09.06	Assault occasioning bodily harm (s 317(1) of the Criminal Code)	09.10.06:  suspended imprisonment order (9 months concurrent), suspended for 12 months	South Hedland Magistrates Court
01.01.08	Assault occasioning bodily harm (s 317(1) of the Criminal Code)	22.08.08:  suspended imprisonment order (15 months concurrent), suspended for 18 months	South Hedland Magistrates Court
04.08.09	Disorderly behaviour in public place (s 74A(2)(a) of the Criminal Code)	14.08.09:  Fine $450	South Hedland Magistrates Court
13.03.09	Sexually penetrated a child over 13 and under 16 years old (s 321(2) of the Criminal Code)	09.08.10:  Imp 9 months cumulative	South Hedland District Court
	Sexually penetrated a child over 13 and under 16 years old (s 321(2) of the Criminal Code)	09.08.10:  Imp 9 months cumulative	South Hedland District Court
Breach of conditional suspended sentence (order of 22.08.08)	09.08.10: Imp 6 months	South Hedland District Court
19.04.09	Assault public officer (s 318(1)(d) of the Criminal Code)	26.08.10:  Imp 6 months, concurrent from 26.08.10	South Hedland Magistrates Court
14.06.16	Failed to comply with reporting obligations (s 63(1) of the Protection Act)	19.09.16:  Fine $200	South Hedland Magistrates Court
19.08.19	Failed to comply with reporting obligations (s 63(1) of the Protection Act)	16.09.19:  Fine $500 (global)	Perth Magistrates Court
	Failed to comply with reporting obligations (s 63(1) of the Protection Act)	16.09.19:  Fine $500 (global)	Perth Magistrates Court
01.01.21	Failed to comply with reporting obligations (s 63(1) of the Protection Act)	04.10.21:  Fine $400	Carnarvon Magistrates Court
02.06.21	Failed to comply with reporting obligations (s 63(1) of the Protection Act)	04.10.21:  Fine $450	Carnarvon Magistrates Court
16.06.21	Possession of Prohibited Drug with Intent to Sell/Supply (s 6(1)(a) of the Misuse of Drugs Act 1981 (Drugs Act))	04.10.21:  Fine $800 (global) Order for destruction	Carnarvon Magistrates Court
	Possession of stolen or unlawfully obtained property (s 417(1) of the Criminal Code)	04.10.21:  Fine $800 (global) Forfeiture order	Carnarvon Magistrates Court

1. The Commissioner produced the statements of material facts in respect of the following convictions, which statements are not contested by Mr Hayes and are summarised below:

   (a)Assault (2008) - Mr Hayes, in company of others, punched the complainant in the face, and when the complainant fell to the ground, Mr Hayes jumped and kicked the complainant to the chest and stomach area a number of times, and later used a nearby fence to raise himself up higher and jumped on the complainant.  The complainant suffered from a cut above his left eye which required seven stitches, a swollen right eye and a cut above his right ear.

   (b)Sexual penetration (2009) - At a time when Mr Hayes was 23 years old and the complainant was 15 years old, both of whom had known each other for about three years, Mr Hayes had sexual intercourse with the complainant.  At a video record of interview with police, Mr Hayes admitted knowledge of the complainant's age, and that it was wrong to have sexual intercourse with her.

   (c)Assault of public officer (2009) - while police were attending to an incident, Mr Hayes yelled verbal abuse at police, and was behaving aggressively and positioned in a boxing stance.  Mr Hayes returned later yelling verbal abuse to the police again, and had a glass bottle in his hand, which he then threw at police, hitting a light pole.  The constable standing next to the pole was showered in glass, but did not sustain any injuries.

   (d)Reporting failure (2016): by virtue of his convictions of sexual offences, Mr Hayes is a reportable offender under the Protection Act, and is registered with the Australian National Child (Sex) Offender Register. He is required to comply with obligations imposed by the Protection Act for 15 years, which includes attending regular meetings with his case officers and reporting changes in his personal details within seven days of those changes occurring. He failed to attend a scheduled meeting on 14 June 2016. In a police interview, he admitted to forgetting to attend the appointment as he 'had a lot of things on his mind'.

   (e)Two reporting failures (2019): Mr Hayes is required under the Protection Act to report changes to his place of residence and to any motor vehicle he is using. In April 2019, Mr Hayes changed residential address, and in June 2019, he purchased a motor vehicle, but did not report either change. In explanation, he stated that he had 'got side tracked working as a FIFO and forgot to report'.

   (f)Two reporting failures (2021): Mr Hayes is required under the Protection Act to notify police of any change to the address in which he generally resides and any travel from where he generally resides. In January 2021, he changed residential address, and in June 2021, he travelled to Onslow, but did not notify police of either change. His explanation provided in a police interview was that he '[had] been busy'.

   (g)Drug possession (2021):  police executed a drugs search warrant at a unit in Onslow at which Mr Hayes and a co-accused were present.  They found bags of cannabis, totalling 240 grams, in a backpack in a bedroom and in the kitchen cupboard.  Police also found a set of scales, numerous unused clip seal bags, $1,580 cash in the backpack and $150 cash in the kitchen cupboard.  In mobile messages between Mr Hayes and the co-accused between 17 May 2021 to 9 June 2021, it detailed 'a premediated plan to convey a pound of cannabis from Perth to Onslow for the purpose of selling it in Onslow'.

   (h)Possession of unlawfully obtained property (2021):  Following the drugs search referred to in [17(g)], Mr Hayes participated in a video record of interview where he stated that he had earnt the $1,580 cash from surveying country.

2. The 2021 offences were dealt with in the Magistrates Court of Western Australia in Carnarvon on 4 October 2021, and the transcript of the sentencing hearing indicates that Mr Hayes pleaded guilty to all of the charges.

The applicant's case

1. While Mr Hayes accepts that he has a criminal history, he contends that the existence of such history is not solely determinative of an assessment of character.

2. As to the nature of the convictions, he says that:

   (a)he had admitted to committing the most serious offences (of sexual penetration), indicating remorse and insight, and there was no allegation of use of coercive, violent or threatening behaviour in the commission of the crime;

   (b)the complainants of his assault convictions did not suffer any permanent or extensive injuries, and he has not committed any other violent offences since 2010;

   (c)the breach of his obligations under the Protection Act did not relate to re-offending behaviour; and

   (d)he had entered pleas of guilty for his convictions relating to drug possession.

3. Further, Mr Hayes submits that despite his criminal record as at 2018, the Commissioner issued a firearm licence to him on 7 March 2018.

4. He has been in gainful employment since he was 18 years old as a process operator for BHP then a boilermaker with FMG, before returning to full-time work for BHP as a boilermaker on a fly-in fly-out basis.

5. He does not use drugs or illicit substances, and rarely drinks, and is frequently subject to urine analysis in order to maintain his employment.

6. Mr Hayes relies on two written character references from Messrs Ian McKenna and Stephen Verran.

7. In Mr McKenna's reference, he states that he has known Mr Hayes personally and professionally for over four years, and considers that Mr Hayes has an outstanding character, and is reliable and responsible.

8. As a landholder and farmer in the northern agricultural regions of Western Australia himself, Mr McKenna has witnessed Mr Hayes handle and fire his rifles in a safe and professional manner.

9. He is aware that Mr Hayes hunts native and feral animals to provide food for ceremony as part of his obligations to his community, and recognises the fundamental role that Mr Hayes plays as an emerging leader within his community.

10. In Mr Verran's reference, he states that he has worked with Mr Hayes for three years as his direct supervisor, and considers Mr Hayes has great work ethic and keenness to complete all his activities thoroughly and efficiently.

11. In short testimony given by Mr Hayes as to what he told Messrs McKenna and Verran about his criminal convictions, Mr Hayes testified that prior to obtaining their references he had mentioned that he had a criminal history without providing them with specific details.  

12. However, by the time he sought the character references, Mr Hayes revealed to both men that he had been convicted of sexual assault offences, assault offences and drug offences.

The Commissioner's case

1. The Commissioner contends that Mr Hayes is not a fit and proper person to hold a firearm licence primarily on the basis of his history of criminal offending, which is indicative of his character as well as a general disregard for the law.

2. The Commissioner points to the following characteristics of Mr Hayes' criminal history:

   (a)it includes serious offences, such as sexual penetration and assault of a public officer;

   (b)it demonstrates a tendency towards violent offending; and

   (c)it stretches across a variety of criminal behaviour, such as sexual offences, drug offences, and violent offences.

3. Further, Mr Hayes continued to offend even when he held a firearms licence.

4. His continued breaches of his reporting obligations under the Protection Act, and his multitude of excuses for his breaches, belies a true lack of remorse for his actions.

5. Finally, his recent drug-related convictions raise concerns about public safety, which is antithetical to the preferred characteristics of a firearms licence holder.

Legislative framework

Firearms Act 1973

1. The long title to the Act provides that its purposes are, relevantly, to make provision for the control and regulation of firearms and ammunition, and the licensing of persons possessing, using or dealing with firearms and ammunitions.

2. There are several categories of licences under s 16(1) of the Act for which a person may apply under s 18 of the Act, including a Firearm Licence, which entitles the holder to possess, carry, and lawfully use the firearm named and identified in that licence, and ammunition for that firearm.

3. Section 11 of the Act sets out how the Commissioner is to exercise his discretion to issue a licence.

4. The Commissioner may also revoke a licence where the Commissioner is satisfied that a licence holder could not, because of s 11 of the Act, be issued the licence if the person were then applying for it: s 20(1)(a)(iii) of the Act.

5. Section 11(1) of the Act provides for the following three grounds on which the Commissioner must refuse to, relevantly, issue a licence; that is, where he is of the opinion that:

   (a)to do so would be contrary to s 11A (that is, that a person has not shown a genuine reason for acquiring or possessing a firearm) or regulations under s 11B or s 11C;

   (b)it is not desirable in the interests of public safety; or

   (c)the person is not a fit and proper person to hold the licence.

6. Finally, before issuing a licence, the Commissioner is to relevantly ensure that, for the purpose of forming an opinion as to whether the person is a fit and proper person to hold the licence:

   (a)reference has been made where practicable to relevant criminal records held by the police forces in this State and elsewhere in Australia (s 18(4a)(a) of the Act); and

   (b)if there is any apparently reliable indication that for any other reason the person may not be a fit and proper person to hold the licence, sufficient evidence has been provided to the Commissioner to satisfy the Commissioner that the person is a fit and proper person to hold the licence (s 18(4a)(c) of the Act).

Fit and proper person

1. Section 11 of the Act outlines the considerations which the Commissioner may take into account in deciding whether a person is a fit and proper person to hold a licence, including certain circumstances which constitute sufficient grounds for forming such an opinion.

2. Relevantly, the Commissioner has sufficient grounds for forming an opinion that a person is not a fit and proper person to hold a licence if the Commissioner is satisfied that at any time within the period of 5 years before the application, the person was, whether in this State or in any other place:

   (a)convicted of an offence involving assault with a weapon;

   (b)convicted of an offence involving violence;

   (c)convicted of any offence against the Act; or

   (d)the subject of a violence restraining order made against the person:

   s 11(3)(a) of the Act.

3. However, whilst the matters in s 11(3)(a) of the Act provide the Commissioner with sufficient grounds for forming an opinion that a person is not a fit and proper person to hold a licence, the Commissioner may nonetheless form the contrary view that the person is a fit and proper person to hold a licence: s 11(5) of the Act.

4. Further, s 11(3) of the Act does not limit the Commissioner's ability, in forming an opinion as to whether a person is a fit and proper person to hold a licence, to take into account:

   (a)a conviction or order made outside the period of 5 years referred to in s 11(3)(a) of the Act; or

   (b)anything else that could have been taken into account if that subsection had not been enacted:

   s 11(6) of the Act.

5. Finally, where the Commissioner is satisfied that a person has a history of, or a tendency towards, violent behaviour, the Commissioner may take it into account in deciding whether that person is a fit and proper person to hold a licence: s 11(2) of the Act.

Tribunal jurisdiction

1. Under s 22 of the Act, a person aggrieved by a decision made by or on behalf of the Commissioner may apply to the Tribunal for a review of the decision.

2. By the Commissioner's decisions to revoke Mr Hayes' firearm licence and to refuse to grant a firearm licence in respect of additional firearms, this application falls within the Tribunal's review jurisdiction as a matter that expressly involves a review of the Commissioner's decisions: s 17 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).

3. The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review: s 27(2) of the SAT Act.

4. The review is not confined to matters that were before the Commissioner but may involve the consideration of new material whether or not it existed at the time the decision was made: s 27(1) of the SAT Act.

5. Nor is the review limited to the reasons for decision or grounds for review set out in the application: s 27(3) of the SAT Act.

Community Protection (Offender Reporting) Act 2004

1. The long title to the Protection Act provides that its purposes are, relevantly, to require certain offenders who commit sexual offences to keep police informed of their whereabouts and other personal details for a period of time to reduce the likelihood that they will re-offend and to facilitate the investigation and prosecution of any future offences that they may commit, and to enable information to be published about certain offenders.

1. Under Pt 3 of the Protection Act, reportable offenders have reporting obligations to report on, relevantly:

   (a)their personal details in an initial report, and then annually and as required;

   (b)any changes to relevant personal details;

   (c)any intended absences from their place of residence; and

   (d)any intended absence from Western Australia, or from their travel plans while out of Western Australia, and on their return to Western Australia.

2. Reportable offenders who fail to comply with any reporting obligations commit a crime (or an indictable offence), which offence can be dealt with summarily by a summary conviction penalty of a fine of $12,000 and imprisonment for 2 years: see s 63(1) of the Protection Act, ss 3 and 5 of the Criminal Code (WA) and s 3(1) definition of 'indictable offence' under the Criminal Procedure Act 2004 (WA).

3. Under certain circumstances, the Commissioner may publish a photograph and locality of reportable offenders: s 85G of the Protection Act.

Legal principles

1. It is long established that a general purpose of the Act is to protect the public by providing for the regulated use of firearms: Thayli Pty Ltd v Commissioner of Police [2021] WASCA 46 at [37].

2. The objects of the Act include the control and regulation in the public interest, including safety, of firearms and ammunition and the limitation, by a restrictive licensing scheme of those who may possess, use, deal in or manufacture firearms and ammunition: Re Jones; Ex parte The Commissioner of Police[1999] WASCA 246 at [19].

3. Consistent with the long title of the Act, s 11(1)(b) of the Act requires the decision-maker to take into account the interests of public safety, which goes arm in arm with the requirement that the person who is to be granted a firearms licence be a fit and proper person: Minitti v Commissioner of Police [2010] WASCA 198 ('Minitti') at [13].

4. The purpose of the expression 'fit and proper person' is to give the widest scope for judgment and for rejection of an application for a licence:  Hughes & Vale Pty Ltd v New South Wales [No 2] [1955] HCA 28; (1955) 93 CLR 127 at 156.

5. It is not a concept which should be narrowly constructed or confined: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 ('Bond') at 348.

6. The expression takes its meaning from its context and from the activities in which the person is or will be engaged pursuant to a licence and from the ends to be served by those activities:  Bond at 380.

7. A firearms licence should be considered a 'privilege, not a right', with the licence holder bearing the responsibility not to abuse such privilege:  Penketh v Commissioner of Police [2010] WASC 254 at [49], referring to Schamotta v The Queen [2002] WASCA 262 at [15] and Binns v Gardiner [2004] WASCA 275 at [40].

8. The worthiness of a person to hold the privileges and benefits of a licence are directly relevant to the concept of fitness and propriety (Bond at 350), and should be assessed against the character and reputation of the licensee (Bond at 382).

9. Any decision about whether or not the applicant is likely to represent a threat to public safety in the future if allowed to retain or obtain further firearms licences is a decision which has to be made in the knowledge of the applicant's past conduct, behaviour and general character:  Knight v Commissioner of Police [2011] WASC 93 at 74.

10. The 'fit and proper person' requirement has been characterised as a 'catch-all requirement' that enables an application for a firearms licence to be refused where there remains a concern that the applicant is not an appropriate person to hold a firearms licence on responsibility or safety grounds, even though none of the other express requirements for refusal under the Act seem to apply in the circumstances: see Wignall and Commissioner of Police [2006] WASAT 206 at [303].

11. Whilst s 11(3) of the Act provides that a conviction within a 5­year period of any of the stipulated types of offences is in itself and without more a sufficient ground for forming an opinion that a person is not a fit and proper person, s 11(6)(a) of the Act does not limit the ability of the Commissioner to take into other offences outside the period of 5 years: Re Jones at [21]-[22].

12. Prior convictions may be relevant to an application if they represent a course of disregard from the law as to reflect adversely on the character of the person committing them:  Tavelli v Johnson (unreported, WASC, Library No 960693, 25 November 1996).

13. The nature and circumstances of the criminal conviction will be a matter for assessment by the Tribunal:  Minitti at [13].

14. The mere fact of a conviction alone would not be enough to show that an applicant was not a fit and proper person to hold a firearms licence; the type of conviction would be a necessary piece of information:  Minittiat [18].

Consideration

Sole ground for refusal - fitness and propriety

1. In this application, the Commissioner has refused to issue a firearm licence to Mr Hayes for additional firearms, and revoked Mr Hayes' firearm licence, on the sole ground that the Commissioner does not consider Mr Hayes to be a fit and proper person.

2. No evidence was led, nor contention made, that the Commissioner was of the opinion that the issue of the firearm licence or continuation of Mr Hayes' firearm licence:

   (a)pursuant to s 11(1)(a) of the Act: would be contrary to s 11A (relating to a genuine reason for acquiring or possessing firearms) or regulations under s 11B or s 11C of the Act; or

   (b)pursuant to s 11(1)(b) of the Act: is not desirable in the interests of public safety.

3. It is thus not necessary for me to consider whether Mr Hayes' firearm licence could have been revoked, nor his application for a firearm licence for additional firearms refused, on the basis of the two grounds referred to in [71] above.

Is Mr Hayes a fit and proper person to hold a firearm licence?

1. It is not in contest that the only offences for which Mr Hayes was convicted within the last 5 years do not fall within the categories specified in s 11(3)(a) of the Act, which could have, in itself and without more, given sufficient grounds for forming the opinion that he is not a fit and proper person to hold a firearm licence.

2. Section 11(6) of the Act, however, allows for the question of fitness and propriety to be informed by any other convictions of the same category (or indeed of any other category) recorded outside that 5-year period and thus the whole of Mr Hayes' criminal record is relevant to the issue of fitness and propriety.

3. There are justifiable grounds for the Commissioner's opinion that Mr Hayes is not a fit and proper person, as his criminal history includes offences which are serious in nature (in particular, the sexual offences), have involved violence, and have endured beyond young adulthood.

4. I accept Mr Hayes' contention that his criminal history is not the only relevant consideration, as the question of fitness and propriety under the Act is to be given its broadest meaning, and can encompass consideration of other factors which relate to his character and reputation.

5. I accept his evidence and contentions that the cultural significance of the purpose to which he had used (and intends to use) his firearms, his consistent employment history within the mining industry, his lack of antecedents relating to offences under the Act, and responsibility in the use of his firearms, all favour a finding that he is a fit and proper person.

6. I accept the evidence of Mr Hayes' referees, in particular, Mr McKenna, that Mr Hayes has shown he is a responsible firearms owner, and demonstrates reliable and responsible work ethics.

7. However, an overriding consideration in balancing all competing factors must be whether the general purpose of the Act - public safety - is served in determining whether Mr Hayes is a fit and proper person.

8. On balance, I agree with the Commissioner that the weight of the seriousness and pervasiveness of Mr Hayes' criminal history renders him a person not fit and proper to hold a firearm licence.

9. Firstly, notwithstanding a hiatus of 7 years between convictions, Mr Hayes then committed five breaches of his reporting obligations under the Protection Act in 2016, 2019 and 2021, which, while dealt with summarily in the Magistrates Court of Western Australia, are offences of a serious nature in the sense that they could have been dealt with on indictment.

10. Secondly, the continual breaches of these reporting obligations from 2016 to 2021, on excuses that he had forgotten or was busy, demonstrate a flippant attitude towards, and a reckless disregard for, the protective purpose of these reporting obligations, which is to protect the public from the risk of further sexual re-offending by Mr Hayes.

11. Thirdly, whilst the 7-year hiatus may suggest a level of contrition by Mr Hayes, the recommencement of criminal activity culminating in the 2021 offences (which by now includes drug-related offences) leaves me little confidence that Mr Hayes is able to maintain that level of contrition, and draws back into relevance his past criminal offending, which includes offences involving violence against persons.

12. Finally, the latest set of convictions in 2021, taken as a whole, strikes at the heart of Mr Hayes' character as a person who is still willing to break the law despite his experience with the consequences of doing so.

13. All of these factors fuel real concerns that Mr Hayes can exercise the privilege of his firearm licence legally, safely and responsibly.  

14. In making my determination, some acknowledgment may have been given to Mr Hayes' guilty plea to his 2021 offences, but for the fact that, in his police interview, he failed to accept responsibility from the outset and was dishonest that the cash found in the drug search was from his surveying work.

Conclusion

1. For the reasons set out above, I find that Mr Hayes is not a fit and proper person to hold a firearm licence, and will affirm the Commissioner's decisions to revoke Mr Hayes' firearm licence and refuse Mr Hayes' application for a firearm licence in relation to additional firearms.

Orders

The Tribunal makes the following orders:

1.The application is dismissed.

2.The decisions of the respondent:

(a)to revoke the applicant's firearm licence number 10018438; and

(b)to refuse the applicant's firearm licence application 202208440AFIRZ;

are affirmed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MS K Y Loh, MEMBER

16 MARCH 2023