O'Neall v Commissioner of Fair Trading

NCAT Administrative and Equal Opportunity|2016-06-29

Solicitors: Go To Law Lawyers (applicant) Crown Solicitor's Office (First and Second Respondent). File Number(s): 2016/00378154; 1610390.

REASONS FOR DECISION

On 27 June 2016 the applicant, Mr Gavin Geoffrey O'Neall applied to this Tribunal for review of a decision by the Commissioner of Fair Trading refusing to grant him an operator licence under the Tattoo Parlours Act 2012 (TP Act) on the ground that an adverse security determination had been made by a delegate of the Commissioner of Police about him. The legislation requires the Chief Executive to refuse a licence where such a determination has been made by the Commissioner about an applicant.
On 29 June 2016 the applicant sought a stay of the decision. As the Chief Executive's decision had already taken effect, the Tribunal could not grant a stay: AVS Group of Companies Pty Ltd v Commissioner of Police, New South Wales Police Force (2010) 78 NSWLR 302, 307 [16], 309 [26], 321 [95] - [96]. The Tribunal could, however, grant a temporary suspension of the decision by virtue of its powers under s 60(2) of the Administrative Decisions Review Act 1997, and on that date the Tribunal did order that the decision's operation be suspended until further determination by the Tribunal. The matter was then adjourned part heard. The suspension was still in effect at the time of the present determination.
Over a period of approximately five years, the applicant had acquired a criminal history. On 26 May 2004, police who searched a hall in Speers Point Park, in the Lake Macquarie area of New South Wales, found a bag containing 11.15 grams of cannabis, which the applicant admitted belonged to him. On the basis of that event the Local Court on 14 September 2004 found the applicant guilty of possession of goods suspected of being stolen, possession of a prohibited drug and supply of a prohibited drug.
On 16 December 2004, the applicant was involved in an argument with Ms Naomi Stojkov, with whom he had previously been in a relationship. The applicant twice tripped her, causing grazing to her collarbone area. The following evening, the applicant was again a party to a dispute with her and at one point seized her from behind and used threatening language. Those events led to his being convicted of common assault and assault occasioning actual bodily harm. (Ms Stojkov is now one of the applicant's character referees.) On 13 May 2004, Mr O'Neall had already been convicted of failing to appear in court in accordance with his bail conditions and sentenced to an 18 month good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999.
On 6 March 2008, at a time when the applicant and one Ms Ashley H… (not to be confused with his now wife, Mrs Ashleigh O'Neall (née Proctor)) were involved in a relationship, an argument broke out when they were at home, in the course of which the applicant pushed her to the wall and shortly afterwards threw his wallet and keys at her, causing bruising to her left eyelid and cheek. There was a further argument on 8 March 2008, during which the applicant seized Ashley's blouse and pushed her against the wall. Ms H… picked up a baseball bat, and in the course of a struggle over it the applicant hit her right hand with it, causing injury that required hospital treatment. As a result of those events, the applicant was convicted on 7 April 2009 on two counts of common assault and sentenced to a two-year s 9 good behaviour bond.
On 16 August 2008 the applicant became intoxicated while at the Newcastle Jockey Club and was asked to leave, but refused. He became violent when security guards approached him and police were called. While the security guards were holding him on the ground, a police officer was kicked by him in the throat while he was struggling violently. He then attempted to head-butt a police officer while being taken to a caged vehicle. On the basis of those events the applicant was convicted on 28 April 2009 of assaulting a police officer in the execution of his duty and resisting an officer in the execution of his duty.
On 22 August 2010 the applicant performed a body piercing on the tongue of a young person who was at the time six weeks short of turning 16, the legal age for having a piercing conducted without parental permission. The applicant had said he had asked the girl how old she was, and she had said she was 17. The applicant was cautioned about his actions and advised that he should take more care in future about piercing young persons.
The applicant was convicted on 13 April 2011 of driving with a middle-range prescribed concentration of alcohol and disqualified from driving for 6 months, concluding on 4 September 2011. Nevertheless, the applicant drove while disqualified on 11 July 2011 and was sentenced to a three-year s 9 good behaviour bond. His driver's licence had previously been suspended on 29 August 2007 as he had committed four traffic offences between 20 May 2005 and 23 June 2007.

Applicable Legislation

The legislative scheme under the TP Act is discussed in more detail below. At this point it is necessary to note only that under s 6(1) of the Act, it is an offence to "carry on a body art tattooing business (whether on the person's own behalf or on behalf of another person) at any premises unless the person is authorised to do so by an operator licence". A natural person may apply for an operator licence under s 11 of the act, which "authorises the licensee to carry on a body art tattooing business (whether on his or her own behalf or on behalf of another person) at the premises specified in the licence in accordance with [the TP Act] and the conditions of the licence".
When the Chief Executive receives an application for a licence, he is required to refer it to the Commissioner of Police for an investigation and determination as to whether the applicant is a fit and proper person to be granted the licence, or whether it would be contrary to the public interest for the licence to be granted, or both: (s 14(b)(i)).
Section 16(1) confers on the Chief Executive a general power to deal with licence applications and to grant or refuse a licence. That general discretion is limited by s 16(3), which provides that "The Chief Executive must not grant a licence if:…(c) an adverse security determination has been made by the Commissioner about the applicant".
Under s 27(1)(a) of the TP Act, a person whose application for a licence has been refused may apply to this Tribunal for administrative review under the Administrative Decisions Review Act 1997 (ADR Act). Section 27(3) deals with the nature of the Tribunal's function. It provides as follows: If an application for a licence was refused or a licence was suspended or cancelled by the Chief Executive on the ground of an adverse security determination made by the Commissioner about the applicant for the administrative review: (a) the Commissioner (as well as the Chief Executive) is to be a party to any proceedings in the Civil and Administrative Tribunal for an administrative review of the decision of the Chief Executive, and (b) the Tribunal is to be provided with a copy of the report of the Commissioner's determination, and (c) the Tribunal is not prevented from determining whether the Chief Executive made the correct and preferable decision regarding the application or the licence concerned merely because of the determination of the Commissioner.
The issues in the present case are thus whether the applicant is (a) a fit and proper person to be granted an operator licence or (b) whether it would be contrary to the public interest for the licence to be granted (s 14(b)), or both.

The applicant Gavin O'Neall

In his oral evidence at the hearing the applicant adopted his statement of 24 July 2016 (part exhibit A1) in which he said inter alia that he offered no excuses for the crimes he had committed in the past and accepted full responsibility for his actions. He was guilty of those crimes and was not a good person at that stage of his life, though he believed he had been for most of his life.
When he had just turned 18, he was the victim of a crime that he had spent the last 14 years relentlessly trying to forget. He was beaten senseless by three men in balaclavas who were armed with baseball bats and a knife. After beating him "to a pulp" and trampling his head onto the tiles, they had dragged him out into the dining room by his hair and placed him on his knees in front of his room-mate and friends. A knife was pressed to his throat and one of the three whispered "I'll do you" into his ear. He felt the blade against his throat and genuinely thought he was going to die.
His roommate moved out immediately afterwards and his parents desperately wanted him to return home and live with them, but his pride intervened and he remained in the house for another three months by himself until the lease expired. He did not realize it at the time, but that caused him as much mental scarring as the home invasion itself. Every noise he heard, every car that drove past, no matter what time it was, would bring him to the window with his eyes wide open to see what it was. For months he had barely slept and felt mentally and physically exhausted.
Then the telephone calls started. He was receiving death threats on a regular basis, saying for example if he did not change his statement, they would kill him and his family. He repeatedly informed the police about the threats but no action was taken. At that stage he had reached breaking point and could not handle any more of it, and thus moved back home to be with his family. For a long time he barely left the house and continued to receive death threats from people who he knew lived only a few minutes up the road. He would go through a nightly routine of making sure all windows were closed and all doors were deadlocked.
He could not begin to describe the distress with which he lived on a daily basis, and after a period it all became too much. He turned into a person that he was not, was rude, disrespectful and very selfish, which was not the way he had been raised. He remembers having terrible mood swings where a problem that was trifling to everyone else felt like a much bigger problem to him. He felt that, to be honest, he was not the kind of person most people would have wanted to be around. When the three perpetrators were acquitted he remembers being so upset and angry at the justice system that words could not begin to explain how it could have happened, when all those present had seen the face of one of them and knew who he was. It was a major blow and it took him a very long time to recover from it. It absolutely broke him on the inside.
Although he refuses to use that as the sole excuse for his behaviour, he believes it was the catalyst that sent him over the edge. He was getting into fights, had problems with alcohol and lacked any regard for anybody, especially himself. Eventually that resulted in his finding himself on the wrong side of the law. He was both embarrassed and ashamed of some of the decisions he had made in life, but unfortunately could not go back and change any of it, though he wished he could. All he could do now was learn from his mistakes and hope that the people he had hurt along the way could forgive him.
Over the past eight years he truly believes that he has been slowly returning to the person he used to be. He no longer has problems with alcohol and feels a sense of accomplishment from within that only a settled life can provide. He was not going to say that there was a miracle cure and that he changed overnight, because that was not the case. It was a long hard road and he was doing his best to better himself every day. Attending university was something he had always wanted to do, but he had always lacked the confidence or belief in himself that he could make it. Late last year, however, he had finished his business management course with an 87 high distinction, which gave him a humbling and emotional feeling. He broke down crying the moment he read his results and rang his parents to let them know. Besides the birth of his two children and his wedding day, it was the proudest day of his life.
He believed that to say he was not a fit and proper person to run a business was both very hurtful and upsetting. From the darkest of places where he had been, to the person he had become, he hoped all the hard work he had put into leaving behind the person he was and being the man his family needed him to be could be appreciated. If given the chance to retain his operator's licence he would adhere absolutely to any clauses or amendments to his licence and do anything required of him to prove that he was fit and proper, as well as able, to run a business. He just wanted that chance to prove himself.
In oral evidence at the hearing he reiterated those points. In relation to the home invasion he said that he had been involved in a fight with one of the three assailants earlier that day when one of the three had assaulted him. When they invaded his house, a number of his friends were present, including his friends Andrew and Gavin and his girlfriend Sarah. After the assault he began to experience mental effects and realized that he should not have stayed in the house, but the end of the lease was three months away. He had received death threats over a period of two years.
He moved back to his parents' house, and they were very upset by what had happened. At first he was unwilling to seek psychological help and went into his shell. He had nevertheless seen a psychologist, Don Maxwell, in connection with his (successful) victim's compensation claim. He was diagnosed with post-traumatic stress disorder (PTSD), major depressive disorder and insomnia. Mr Maxwell had suggested that in-patient treatment might be helpful, but he had been reluctant to take that step. He had found it difficult to talk about the invasion experience. Of his own accord he had previously seen another psychologist, Anne Norman, for about six sessions between July 2003 and August 2004, as he realized he was suffering from psychological injury as a result of the attack. He had not, however, found those sessions particularly helpful. Further, as he felt "spaced out" and unwell for two days after the sessions (and the one with Mr Maxwell), he did not think psychological counselling and talking about the home invasion experience was good for him.
At the time he moved back home, he had been working with an earthmoving equipment parts company, but lost his position there because he suffered a breakdown while at work. Before the home invasion he had done well at school, and had been awarded a Lions' Club scholarship for year 11, although he had left school because he wanted to enter the workforce as many of his friends had. The home invasion experience, followed by his dismissal from work, broke him, however; he felt inferior and became very withdrawn.
His first offence was in May 2004, relating to marijuana at Speer's Point Hall when he was 20. He was there with four others when the police arrived and saw the bag. They asked who it belonged to, and he admitted it was his. He had intermittently used marijuana at 16 or 17, but then had started again after the home invasion.
The second group of offences occurred in December 2004 and involved Naomi P…. He had no excuses to offer but he had become angry when he discovered she was sleeping with his best friend. He had tried to trip her up. He is now once again on speaking terms with his friend Brent and with Naomi. The 2008 offences were the two assault charges relating to Ashley H…. He had met her at a time when she was consorting with a friend of his, Scott …. They began seeing each other and on the occasion in question they were having an argument, when he lost his temper and threw his wallet and keys at her. The second incident occurred when he had grabbed her by her shirt and pushed her against the wall. He seized a baseball bat that she was holding and struck her with it on the hand because she was kicking him. After the assault they had seen each other a few times for a while, but he was no longer in contact with her.
The Newcastle Jockey Club episode occurred shortly after the death of his grandmother, to whom he was very close. She had been admitted to hospital for a checkup, but her condition had deteriorated rapidly and the family had had to decide whether to authorize the cessation of life support, which they did. As it was expected that death would soon ensue, the family were asked if anyone wanted to be with her when she passed. As no-one else was prepared to do so, he volunteered to be at her bedside and was present when she died. At the Jockey Club he was intoxicated and very agitated, refusing to leave when asked. When one of the guards seized him somewhat violently, he asked the guard to be careful as he was going out later and did not want his good shirt to be damaged. Thereupon the guard ripped his shirt, apparently deliberately. Security then held him face down on the gravel and he was kicking wildly, striking the police officer in the throat in the process.
In the period since 2008 he had been greatly affected by the deaths of six close friends and relatives in addition to his grandmother, including his 17-year old cousin Luke, who was being bullied at school and committed suicide, and his friend Christopher W…, who was also a suicide. He was also having a hard time financially. The business was not doing well, as Morisset was too small and out of the way to be a good location for a tattoo business. His parents helped him financially and he also went to see a financial counsellor, Sandra Phillips, in 2011. She was a great help and advised him how to suspend his house mortgage payments from 2011 to 2013.
He was having problems with anger and trust but wanted to deny that he needed help. He believed rather arrogantly that he could get past his problems by himself. Nevertheless, after the assault offences he began to realize the extent of his anger problem, especially given his violence against women, and joined Dr Lyndon Green's anger management course of one-on-one sessions in 2009 of his own motion. He completed all 12 sessions in the course and found it very helpful. Dr Green had shown him how to deal with anger and stress.
He had never been dependent on alcohol or drugs. He had seen three psychologists in all, Dr Green for about 12 sessions, Anne Norman for six sessions, and he could not remember how many times he had seen Don Maxwell.
His $700 fine for a mid-range PCA on 13 April 2011 arose from the fact that he had been playing cricket all day and consumed two beers, then later two more and probably more again, and had then driven home. His driving while disqualified offence in 2011 that resulted in a s 9 bond was his last traffic offence. His last criminal offence was in August 2008. He had pleaded guilty at the first opportunity to all his offences and had not obtained legal representation for any of his hearings as he knew he was guilty and just wanted to own up to it.
In all, his condition now was nothing like it had been in 2008. Meeting his wife had changed his whole life. They had become acquainted in 2009 at the real estate agency where she was handling the rental for his business premises. They began dating a few months later and were married in November 2012. They have two children, who are taking swimming; the boy has joined a rugby league club and the girl is learning ballet. Family life has brought him great stability which "you couldn't buy". His parents live only 20 minutes away from their house.
His mental state is very good and he no longer suffers from flashbacks or anger outbursts. He drinks only occasionally and is not on any medication. The tattoo business is better than ever since he moved it to Charlestown and he has no financial problems. The business supports the family. His wife Ashleigh is studying nursing full-time and working one shift a week at the hospital. He loves the business and has good staff, although tattoo artists tend to be rather footloose and move from one studio to another quite readily. Over the years he had had 12 staff. He never employs staff who have a criminal record, and in any event they must now undergo a police check first.
In his BASIS 32 questionnaire administered by Mr Maxwell in 2016 he had indicated some stress in relation to work, but his problems mainly stemmed from the proceedings brought by the Commissioner of Fair Trading. He had wanted to go into business initially because of the problems he had in holding employment because of his psychological condition. He had opened the tattoo studio because he had observed that there was no tattoo parlour between Glendale and Wyong. He had no particular problems in conducting the business now and simply dealt with the issues presented by some staff and the conduct of the CFT proceedings in the same way as with any other problems.
He has never been a member of an outlaw motorcycle gang (OMCG), nor has he ever had any association with one. He has no customers or friends who are associated with OMCGs.
The incident relating to performing a body piercing on a person under 16 without parental permission (exhibit R2, p 81) occurred when the client was just six weeks short of her sixteenth birthday. He had asked her for identification, but she had refused, saying that she was 17 but did not have any identification on her. Nevertheless, he had not insisted on seeing ID and had completed the procedure. He had received a police caution over the incident. He had never made the same mistake again in 10 years of running the business and now had a system in place whereby he copies the client's driver's license or other identification and keeps a copy on file.

Mrs Ashleigh O'Neall

The applicant's wife Mrs Ashleigh O'Neall, in oral evidence, adopted her statement dated 25 August 2016 (exhibit A1, p 12) in which she said inter alia that she was aware of her husband's full criminal history and the proceedings taking place in relation to the hearing. She wanted the Tribunal to know that she holds her husband in the highest possible regard. He is a loving and caring father to their two small children and a genuine "softy" at heart. They have of course had their ups and downs like every other married couple, but in the seven years they have been together he has always been a true gentleman who would give someone the clothes of his back if they genuinely needed it more than he did. He is the kind of person who, if he sees an older lady struggling at the supermarket with her trolley or bags, he will always go out of his way to give her a hand. He mows their 60 year-old neighbour's front yard whenever he does theirs and always makes time for his family no matter how busy he is. That is the kind of person he is, and she really wishes the Tribunal could see him for who he really is today, and not the person portrayed in his criminal history.
She knows he had made mistakes in the past and personally does not condone some of the decisions he made. When he lost his licence for drink driving and driving while disqualified, it put considerable strain on their family and there were some very difficult times. It was poor judgment, which she is sure all would agree, but it does not at all define the person he really is inside. To say that he is not a fit and proper person or that it would be contrary to the public interest if he were granted a licence does not come close to sounding like the man she knows. She admits that she is not sure how a person is categorized as fit and proper, but she does know without a shred of doubt that her husband is a kind, caring and beautiful person at heart who is well respected and liked in their community. She knows how much this studio means to Gavin and their family as a whole, and although she does not think her saying so would carry much weight, she could guarantee and promise that if given the chance he would prove that he is the person she was describing and would go to the ends of the earth to keep his studio open.
At the hearing Mrs O'Neall reiterated those points and added that the applicant had told her when they had started to become serious some 8 years ago all about his criminal history, the drugs, the assaults, the PCA and his disqualification. Their first child was born in 2010, and the second in 2012. He was a wonderful father, and was always there.

Mr and Mrs O'Neall Snr.

The applicant's parents, Geoffrey and Lesley O"Neall, at the hearing adopted their joint statement of 16 July 2016 (exhibit A1, p14ff). As it is quite detailed, only a summary will be given here. They stated that as a young boy growing up he was full of energy, happy and contented with his family and surroundings, a loving child who valued family outings. He was always thoughtful to others; for example when riding his bicycle to school, he would often call in and visit an elderly lady named June just to say hello, have a chat and make sure she was all right. June thought of him as a wonderful boy and looked forward to his visits. Without being asked he mowed the lawn of the elderly man living next door, who was appreciative of his help.
He was a keen sportsman while growing up, winning many awards for league and cricket, and won the City and Suburban Cricket Association's DH Blackley award for the best wicket-keeper two years in succession. He was always a team player who valued fair play and team effort. At school he applied himself well and was always academically bright. He was well respected by his teachers and those around him. After leaving school he attended TAFE to pursue a course in manufacturing and engineering and indicated his eagerness to learn and pursue a career.
At the age of 18, he decided he wanted his own independence and moved into a rented house with a friend. Then came the violent home invasion. During the attack, one of the intruders' masks came off, and both Gavin and his friends were able positively to identify the man. After the assailants had fled, Gavin contacted him and told him what had transpired. The police were informed and statements taken. The case dragged on for two years, during which time Gavin was subjected to constant death threats if he continued with the case. Finally the accused were acquitted and released, even though they had been positively identified. The reason given for the acquittal was that statements by other witnesses were changed at an extremely late date before the decision was handed down.
The incident had a profound effect on their son, who became unsettled. It affected his decision-making and clouded his judgment. He became aggressive, which was something they had never witnessed before, as he had never been an aggressive person. His career aspirations were suddenly forgotten, as was his zest for life. He became sullen and withdrawn, not contacting them as frequently as before. His behaviour deteriorated to the extent that he was prone to become aggressive when irritated, which led him to committing a variety of misdemeanours which involved the police.
Eventually Gavin admitted he needed help and was diagnosed with PTSD and advised to seek counselling, which he did. They felt that this had helped to a degree, but it did not quite fix the problem, as he still had problems with anger stemming from the mental scarring of the incident. As parents, they had no words to explain how deeply painful it was to watch their loving son in this state of mind, and they sincerely thought they were going to lose him, either through suicide or that they would never recover their kind-hearted and loving son, who had dreams of becoming something special.
Since that incident, they had watched him very slowly claw his way back to becoming once again a good person and a responsible adult. He has attended anger management classes of his own free will in an effort to rectify his problems. That also assisted him in his recovery. He also opened his own tattoo business, which is free from OMCG involvement, and met a beautiful young lady and married her. He has also returned to university and completed his Open Foundation Certificate, and is currently studying finance and business management.
From where Gavin has been to where he is today is not only a minor miracle in itself, but they could not be more proud of their son's determination to better himself and get his life back on track. They are, however, terrified that all the progress they had made to get him back to the person he was could still prove to have been for nothing. The studio not only represents his financial income, but defines him as a person and shows his true character. He had hit absolute rock bottom, and if he was a lesser person he could not have come back from that. But for him to rise up and confront his demons is an absolute credit to his resilience and sheer determination to be something more, which makes them the happiest parents in the world. Their son has put almost his entire adult life into that studio, and they can honestly say that if it were not for his business, they would not have got their son back.
All parents want the very best for their children, and to see their son recover his self-worth and once more become the loving and caring person they always knew him to be could not make them more proud. He is a great husband, and a doting father to his small children, and his moral compass is back facing 'true north'. They have personally witnessed the way he conducts himself with the general public who frequent his business, and are of the opinion that he is once more a responsible and respected person and prepared to go to great lengths to prove his worth. He is not the person he turned into for a few years as a result of being a victim of crime. He is a great young man, and after everything he has been through, they hoped the Tribunal could agree that he deserved a chance to prove himself.
In oral evidence in chief Mr O'Neall added that after the home invasion, they had given him what advice they could and endeavoured to get him to talk. They also gave him financial help, but only when he needed it. The period of his assaults and driving offences had been a dark time for them. He had previously been happy, independent, family-minded and goal-oriented. But afterwards he did not want to talk and had frequent outbursts, tears, and was constantly afraid. Ashleigh had proved to be a very calming influence and had helped to bring about a major change in him.
Mrs Lesley O'Neall added that after the home invasion they had given their son all the support they could, by way of love and help. They were fully aware of his convictions, but he is now displaying all the same qualities as he had always manifested previously.

Ms Kristine Cooper

A written statement by Ms Kristine Cooper dated 7 August 2016 (exhibit A1, p 8) declared that she had known the applicant for 16 years after meeting him through her husband, who had a long-standing friendship with him. Since meeting Gavin, she had had the pleasure of sharing some great times with him, as well as some bad times, such as deaths in the family, when he was nothing but supportive during such times. Over the years he had proved to be loyal, kind, honest and, above all, a true friend, not just to herself, but to her husband as well. He is the sort of man that would give the shirt off his back to help others, without hesitation. When they had their first child, Gavin came to the hospital. When they saw him dote on their daughter, it became apparent to them that he would make the perfect godfather to her. With the love he has for her as well as their other two children, he was a fitting choice, as they knew the children would grow up beautifully, having him as one of their role models. In oral evidence the applicant mentioned that Ms Cooper had booked in for a tattoo at the studio.

Ms Shane Kelly

Also tendered was a reference from Ms Shane Kelly dated 24 July 2000 (exhibit A1, p 10), at a time when she had been a teacher and year adviser for the applicant at Morisset High School for a period of five years. She stated that he was academically capable and approached set tasks with a diligent attitude and reliably completed them. In terms of character and personal traits she had found him to be a very impressive young man. She had watched him develop and mature and show leadership skills through his involvement in sport. He was an excellent sportsman and exhibited a well-developed sense of humour. She had always found him to be an honest and sincere person, a very trustworthy individual. She believed Gavin could only be an asset to an employer and would exhibit fine qualities in whatever capacity in which he was employed or at any undertaking he might pursue.

Ms Naomi Stojkov

Ms Stojkov, the mother of two children and manager of Gold Class Cinemas at Charlestown, in her letter of support dated 2 November 2016 (part exhibit A1) wrote that she had known the applicant and his family for about 13 years and had been made aware of his full criminal history, including all of his driving infringements, the assaults on Ashley H…. and a police officer, as well as the drug charges. She wished the Tribunal to know that she personally believes the applicant to be a sincere and much matured family man and that he portrays none of the aggressive traits he once possessed. She had caught up with him over the years and considered him to be a good friend she could always rely on.
She acknowledged that they had had problems in the past and he was found guilty of assault against her, but they were both very young and immature back then and both made their fair share of mistakes, which she believed is what growing up is all about. She by no means condoned some of the things Gavin had done, but did know that he was dealing with many personal issues back then, especially with what happened to him in regard to the home invasion and the mental strain it exerted on him. She believed that greatly interfered with his judgment and that his criminal history did not at all reflect the type of person that she knows.
Gavin comes from a beautiful family and his parents are some of the nicest people she has ever met in her life. She agrees that Gavin had made some bad decisions in life and is sure that he would not be proud of them. But she knows the person he is deep down and holds absolutely no ill-will towards him, holding him in the highest possible regard as a human being and is a good friend. She has forgiven him for what happened and sincerely hopes that the Tribunal could see him for who he is today and not the person he was back then.

Ms Sandra Phillips

The applicant also submitted a reference from Ms Sandra Phillips, financial counsellor, dated 2 August 2016 (exhibit A1, p 9). She said the applicant had been seeing her for the last five years for assistance with his finances. When he had first come to see her he had financial problems, but through hard work had managed to work his way through them. She had found Gavin O'Neall to be an honest and open client throughout the counselling sessions she had conducted with him. He has a mortgage and two children whom he solely supports. She believes he runs his business honestly and transparently and that to deny him the ability to continue in his business would have an adverse effect on him and his family.

Psychologist's evidence: Mr D J Maxwell

Mr Donald J Maxwell, clinical psychologist, has since 2004 prepared three reports relating to the applicant:

31 December 2004: an assessment prepared at the request of the Victims Compensation Tribunal (exhibit R3, p 12ff);
2 September 2016: a psychology report addressed to the Department of Fair Trading (exhibit A1, p 19ff);
3 November 2016: an appraisal of Dr Katie Seidler's report of 17 October 2016 relating to the applicant (part exhibit A3).

The Victims Compensation Tribunal had requested the 2004 report in connection with the applicant's compensation claim. He had previously had six counselling sessions with Ms Anne Norman, but those sessions were not connected with the claim. Mr Maxwell conducted a structured interview and administered a number of written psychometric tests, which led him to form the opinion that although the act of violence had occurred more than two years before the assessment, the victim was still severely affected by the event and its aftermath, not least the trial process and alleged harassment, including death threats by the accused, over the past two and a half years. The (then) recent acquittal of the accused had been the most recent stressor of many since the home invasion on 18 May 2002. Mr Maxwell was not aware of the reason why there had been a delay of more than 12 months in commencing VCT counselling, which had then continued for only six sessions.
His PTSD and depression were quite severe and were both directly attributable to the home invasion and assault on 18 May 2002. There were also features of panic disorder. The applicant required further intensive psychological treatment for those conditions. Antidepressant medication was likely to be needed and would play a helpful role in his recovery, which was likely to be slow and gradual, given that the conditions appeared to have been present for more than two years.
There could be little doubt that this young man had been seriously affected by the home invasion and subsequent related stressors. In the absence of intensive and expert treatment there was little likelihood of significant improvement in his overall adjustment. It was important to note that short-term counselling would be insufficient to achieve and maintain any significant degree of recovery for this young man, who had been severely traumatized. The severity of his symptoms was such that treatment within a specialized inpatient PTSD unit (e.g. St John of God Hospital at Burwood or North Richmond) was warranted. It was recommended that the victim consider applying for an advance on his award for compensation, which would facilitate admission to such a program.
The September 2016 report was based on a structured clinical interview, the 2004 report, police criminal history and traffic records and a number of psychometric tests. Mr Maxwell noted that Gavin had returned in August 2016 for review in the context of the Department of Fair Trading proceedings. He had not received treatment from mental health professionals following assessment in September 2004. It was noteworthy that his criminal record, including offences involving drugs, alcohol and violence, dated from that time, when he was not being treated for significant mental health conditions, and appeared to have self-medicated with substance use.
Gavin's capacity for employment had been greatly compromised by the psychological injury he had suffered from the home invasion. He had been able to maintain self-employment since 2007, and that continuity, together with the commencement of a stable partner relationship and becoming a father, had been very therapeutic.
Mr Maxwell stated that his recent review of Gavin, including updated psychometric data, indicated that his mental state was much improved compared with 12 years ago. He no longer met the diagnostic criteria for PTSD or MDD, but manifested some mild residual symptoms, including sleep disturbance. Exacerbating factors that year (2016) had been the serious health problems of his father and the stress associated with the current proceedings.
The absence of criminal offences since 2011 provided evidence of improved adjustment, associated with Gavin having a family of his own and stable employment. It also supported Mr Maxwell's original finding of the absence of significant personality disturbance, such as antisocial personality disorder.
The present assessment, Mr Maxwell concluded, found no psychological risk factors that would be incompatible with running a business for the foreseeable future. Psychological counselling or therapy for 3 to 6 months could benefit Gavin in terms of improved adjustment, if he chose to pursue it.
In telephone evidence at the hearing, Mr Maxwell repeated that the applicant's adjustment was much improved. He was in regular work, which was something he could not manage in 2004. His test measures were in the normal range: depression was not elevated, and he had low score for PTSD.
He had not had any conversations with Dr Seidler in connection with her report. He noted her view that he had missed some sources of information in his evaluation, but pointed out that he was working in a very tight timeframe and used the information that he received on the day of the assessment. It was unusual to receive so little documentary information in such cases.
In cross-examination he pointed out that no curriculum vitae was supplied with his 2004 report because the Victims Compensation Tribunal was already aware of his qualifications, which they had obtained for the purposes of panel membership. There was no CV for the September 2016 report either, but there was one for the 3 November 2016 reply. As he had pointed out in that report, he had previously been a clinician for the Children's' Court and had received his instructions from the Childrens' Court clinic. Consequently he had experience in a legal setting in both the Childrens' Court and the VCT, and in addition performed assessments for solicitors. He was not a forensic specialist, but was asked to supply reports of that nature. He had not been in possession of a copy of the code of conduct for expert witnesses before preparing the report, but was aware of his obligations and did not regard himself as an advocate for the applicant.
His brief had been to assess the applicant's mental condition and health, and he had not used validity indicators or tests containing such indicators. He noted that Dr Seidler had not questioned his conclusions about the subject's mental health. The interview note suggesting that the applicant was having moderate difficulty in relation to work was a transcription error, and in fact the applicant had said he was having only slight difficulty in that regard, and that was the result of being reviewed by the Commissioner of Fair Trading. He had not performed a risk assessment in relation to the risk of violence or criminality.
He was aware of the applicant's criminal record and agreed that the applicant could still engage in violence or crime, but he was functioning mostly within normal limits. There was some residual difficulty, but no PTSD or major depressive disorder. His overall condition was reasonably good and represented an overwhelming improvement.
Mr Maxwell's response dated 3 November 2016 to Dr Seidler's report is discussed below.

Respondent's evidence

The respondents relied on the s 58 documents (exhibit R1), the redacted version of the adverse security determination (exhibit R2) and other documentary material.

Psychologist's evidence: Dr Katie Seidler

The respondent tendered a detailed report by a clinical and forensic psychologist, Dr Katie Seidler, dated 17 October 2016 (exhibit R4). Dr Seidler had been asked by the respondent's solicitors to comment on the methodology and approach, and the appropriateness of, Mr Maxwell's report, in particular as regards psychological risk factors that would be incompatible with running a business for the foreseeable future.
The report concluded that Mr Maxwell's report was a sound analysis of Mr O'Neall's mental health and an appropriate commentary on the improvements to his mental health. The psychometric test measures used were sound in an assessment of the applicant's mental health. Nevertheless, Dr Seidler considered the report to be lacking in several respects. The test instruments utilized contained no validity measures to test Mr O'Neall's approach to the assessment or to examine the possibility of exaggeration and minimization, as would be conventional in assessments of a forensic nature, where people are motivated to present in particular ways. That reduced the degree of objectivity possible in such an assessment and made Mr Maxwell more reliant on the client's self-report which, for a number of reasons, could be unreliable.
Further, it appeared that the only documents with which he was provided for his 2016 report pertained to the applicant's criminal and traffic offence history. There was no other corroborating material referred to and that, to her mind, would be crucial in a case such as this. She would expect reports from the workplace (such as the warning letter in relation to the piercing of a client under 16) or in relation to the court processes the applicant had been involved in since 2004. She would expect such documentation to give a fuller picture of his functioning and, in particular, his workplace performance. Her understanding was that the crux of the matter was the applicant's potential to pose a risk to the community through his employment. Mr Maxwell's report did not provide an analysis of that issue, nor did he employ any formal risk assessment measures, which would be standard practice in a forensic risk assessment such as this. There was also no testing of the criminal matters, and how that behaviour might or might not relate to Mr O'Neall's work and his performance at work, which would seem crucial.
In relation to a forensic analysis of risk, the assessment was inadequate and inappropriate. Dr Seidler agreed with Mr Maxwell's comment that it was a positive that the applicant had apparently not offended now for five years, but the utility of that comment was limited in the absence of any commentary about how the applicant had achieved that, what his understanding was of the factors that contributed to his past offending, both violent and otherwise, and what strategies he was now using to manage those risks in order to remain offence-free. Mr Maxwell's assessment was heavily reliant on the applicant's account. Although psychologists are generally heavily reliant on a client's account, it was acknowledged that there were many situations in which a client has a motivation to present in a particular manner, such that their account may be unreliable.
To assist in increasing objectivity in such situations, psychologists would usually employ validity measures on testing, seek collateral information, including interviewing relevant others, and in situations such as this, use risk assessment measures, all of which work to minimize subjectivity and bias. "Furthermore, and for the reasons outlined above, it is my opinion that Mr Maxwell's opinion about the risk that Mr O'Neall poses is problematic. It does not follow from the material presented in the report and in my view, is also questionable and invalid".
At the hearing Dr Seidler said in cross-examination that she had performed a number of clinical appraisals for the Crown Solicitor. She had done no reading on the concept of "fit and proper person", but as she had had done work in relation to risk, she had some knowledge of the issues.
She agreed that Mr Maxwell had performed the tests he had used correctly and that she herself would make use of the same tests in other cases, but not cases such as the present one. It was essentially a good update on his mental health, but not adequate in relation to risk. The validity issue is significant in the forensic area because subjects can be motivated to present in a particular way. For Tribunal purposes in such a case, the evaluation did not go far enough, especially in relation to risk.
Validity tests would measure the client's approach to test-taking. They cannot give exact information about truthfulness, but they help to show how forthcoming the client is. It is a jigsaw puzzle, with various sources of information, which can also give a false indication of invalidity. The fact that the applicant's mental state had improved did not show a great deal about risk for Tribunal purposes. She disagreed with Mr Maxwell's response to her report on a number of levels.

Mr Maxwell's response

In his written reply to Dr Seidler's report (part exhibit R3), Mr Maxwell began by noting that Dr Seidler acknowledges that she had not interviewed or assessed the applicant and that her report did not constitute an assessment of any risk presented by him. He also considered her failure to discuss his report with him to be a major shortcoming, in that she did not raise and discuss with him any issues concerning his report's validity.
Dr Seidler had referred to the security determination by the police assessment officer, whose qualifications were not stated, who expressed damaging conclusions about the applicant's character that were presented without the slightest critical analysis. Further, Mr Maxwell had not seen the security determination.
The paragraph dealing with his original clinical report in 2004 makes comments about the lack of "validity measures" without clarifying that it was not intended to indicate that the tests were lacking in validity generally. Further, he had provided his report as an authorized report writer for the VCT, and only experienced mental health clinicians satisfying stringent criteria are accepted onto that panel. The report also implied that his findings relied exclusively on self-report psychometric data, without mentioning other sources of information, including a police statement, the report of a VS approved counsellor, and a structured clinical interview. Dr Seidler also did not comment on the significant concurrence of his findings with those of the applicant's general practitioner, Dr Shean, which was relevant to the issue of validity.
In relation to the 2016 report, Dr Seidler again referred to "validity indicators" without explaining the relevance of the psychometric measures used and the existing evidence for the validity of those tests. She had drawn conclusions about his experience on the basis of a brief CV sourced on the Internet, rather than consulting him directly.
In relation to the documents and information with which he was briefed, Dr Seidler had failed to mention that because the applicant was [at that stage still] unrepresented, Mr Maxwell did not receive a brief or information from a solicitor and had to rely on documents copied during his attendance on 29 August 2016. He was concerned with the applicant's psychological "fitness" for the occupation in question but was disadvantaged by not having the security determination or a legal perspective on the meaning of "fit and proper person" in this context.
Dr Seidler's comment that there was no commentary about how the applicant had achieved his record of non-reoffending was unfounded and contradicted her observation that the absence of offences since 2011 provided evidence of improved adjustment. She had failed to identify any conclusions that were not supported by the information available or inconsistent with the material presented, which provided further evidence of a lack of a sufficiently balanced approach to her brief. Her denigration of his clinical opinion as problematic, questionable and invalid was itself unreasonable and unprofessional. He saw no reason to alter his findings in relation to Mr O'Neall.

Respondent's submissions

The respondents, on 24 August 2016, filed written submissions which inter alia set out the applicable legal principles and the applicant's criminal and traffic history. In relation to whether the applicant was a fit and proper person to be granted an operator licence, the Commissioner's adverse security determination concluded that he was not, considering him to be of poor character, lacking in moral integrity and having demonstrated a disregard for law and a propensity to re-offend. He had been disqualified from driving and had his licence suspended on three separate occasions. Four months after failing an RBT test, he had knowingly driven his vehicle without holding a valid license and had attempted to mislead police during discussions concerning his licence and registration status: "The unwillingness of the applicant to acknowledge his actions when found to be in the wrong are an indication of a failure to reform and of future conduct". The Commissioner considered that the personal violence and drug offences were inherently serious and evidenced his poor character and disregard for the law, such that the Commissioner did not consider the applicant to be a fit and proper person to hold an operator licence.
In relation to the public interest limb of the licensing requirements, the Commissioner had noted that there is a public interest in removing criminal elements from the tattoo industry; indeed, that was one of the key objectives of the TP Act. The applicant was first convicted of a personal violence offence in 2005, receiving an 18-month good behaviour bond. He then went on to commit further similar offences in 2008, and again in 2010, resulting in his receiving an eight-month suspended sentence. The Commissioner felt that insufficient time had elapsed since the last offence of violence for there to be any confidence that the applicant would not re-offend.
The inclusion of the public interest consideration in the Act was partly indicative of a concern for public safety within the industry. "The applicant's repeated behaviour in relation to personal violence had shown a disregard for public safety. Similarly, the conviction for the supply and possession of prohibited drugs was also of concern".
The references supplied by the applicant from his father, wife, friend and financial counsellor failed to set out the extent, if any, of each referee's knowledge of the applicant's background or criminal history. Those references therefore did not assist the Tribunal to determine whether or not the applicant is a fit and proper person to hold an operator licence. He had a history of disregard for the law, not only through the number of offences he had committed, but also by his repeated breaches of court orders, including failure to appear in accordance with a bail undertaking (May 2005), breach of a good behaviour bond (April 2009) and driving while disqualified (March 2011). In the last-mentioned case the car had a current registration label affixed, despite being unregistered and uninsured, which demonstrated a lack of honesty and moral integrity on the part of the applicant.
While the applicant claimed to have rehabilitated himself, there was no evidence [as at the date of the written submissions, 24 August 2016], as to the steps he had taken to achieve that result, any anger management courses or psychological treatment or evaluation since the December 2004 report. Having regard to the applicant's serious criminal history, there was insufficient evidence to satisfy the Tribunal that the applicant had taken any, or adequate, steps to rehabilitate himself and reduce the likelihood that he would re-offend. He was thus not a fit and proper person to hold an operator licence.
The public interest also weighed heavily against the grant of a licence. The applicant has a history of violent conduct towards members of the public and police officers, demonstrating a lack of regard for public safety. He also has a history of non-compliance with other licensing and regulatory schemes aimed at ensuring public safety, such as traffic laws. In those circumstances it would be contrary to the public interest for the licence to be granted.
At the hearing counsel was asked what should be the Tribunal's approach to the psychological evidence, given that the views of the two expert witnesses were in conflict. Ms Douglas-Baker submitted that Mr Maxwell, while an independent witness and not the applicant's treating psychologist, was performing an appraisal of his mental health. He had not been asked to perform a risk assessment or to apply actuarial measures of risk. He had found that the applicant was not suffering from any significant mental health problems, notably in relation to PTSD or MDD. He had not identified any psychological risk factors, but that was because he was evaluating the subject's mental health.
Dr Seidler's report was not focused on the applicant's mental health, or on risk, but was an appraisal of Mr Maxwell's approach as a risk assessment. He had found no ongoing mental health problems, but had not undertaken a risk assessment. It was thus possible for the Tribunal to accept the views of both expert witnesses. It was for the Tribunal to make its own assessment of risk.
Validity measures were important in a case such as this, and there had been no identification of risk. There were also some factual issues. In relation to the piercing of a person under 16, the only evidence that the young person had misled him about her age was the applicant's evidence alone. In considering the weight to be given to character references, it had to be noted that Ms Stojkov and Ms Cooper had given no detail about their knowledge of the applicant's record of offences, unlike his parents and his wife.
The warning about the maintenance of duplicate records had been given as recently as June 2016 (exhibit R5). His explanation is for the PCA and other traffic offences were inadequate and showed a disregard for law.

Consideration

Under s 63 of the ADR Act, the Tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the respondent's decision is the correct and preferable one. The Tribunal is to review the merits of the original decision and to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
The applicant has applied for review of a decision taken by the Director-General of Fair Trading under s 27(1)(a) of the TP Act to refuse to grant him a tattoo operator licence. The Commissioner of Police made an adverse security determination (exhibit R2) under s 19(1) of the Act to the effect that the applicant was not a fit and proper person to be granted the licence and that it was not in the public interest for the licence to be granted. Pursuant to s 27(3), the Commissioner is a party to these proceedings.
The TP Act introduced licensing requirements for operators of tattoo parlours and tattooists which came into operation in November 2013. Two kinds of licence may be granted: an operator licence and a tattooist licence. Only an individual can apply for a licence, even where the individual is applying on behalf of an organization: s 11. The licensing regime imposes a test of whether the person is "fit and proper" and whether it would be "contrary to the public interest" to grant the licence. It is an offence to carry on a body art tattooing business without an operator licence: s 6.
A person may apply to the Director-General for an operator licence pursuant to s 11. Sections 12 and 13 provide for an application to be accompanied by a written statement in respect of close associates of applicants and for the fingerprinting and palm printing of applicants. On receiving an application for a licence, the Director-General is required by s 14(b) to refer the application to the Commissioner for an investigation and determination as to whether the applicant is a fit and proper person to be granted the licence, and whether it would be contrary to the public interest for the licence to be granted.
Section 19 requires the Commissioner to inquire into and determine, and report to the Director-General on, those matters. For the purposes of making his determination, the Commissioner may have regard to criminal intelligence reports or other criminal information held in relation to an applicant: s 19(3). Neither the Commissioner nor the Director-General is required to give any reasons for the determination for not granting a licence, if such reasons would disclose any criminal intelligence report or other criminal information: s 20. The Director-General has a discretion whether or not to grant a licence in some circumstances, but must not grant a licence if the Commissioner makes an adverse security determination in relation to the applicant: s 16(3)(c). Once granted, a licence remains in force for three years; it may not be renewed, but a new application can be made: s 17.
Pursuant to s 27(1)(a), a person may apply to this Tribunal for review of a refusal or failure by the Director-General to grant a licence. The Act does not expressly confer jurisdiction on the Tribunal to review any report or determination made by the Commissioner of Police but does so implicitly, as s 27(3)(c) provides that "the Tribunal is not prevented from determining whether the Director-General made the correct and preferable decision regarding the application or the licence concerned merely because of the determination of the Commissioner": Smith v Commissioner of Police and Commissioner of Fair Trading [2014] NSWCATAD 184, [22]. Nevertheless, the Tribunal is required to take the adverse security determination into account as an essential legally relevant consideration to which weight must be given: id., [24].
The assessment of whether an applicant is a fit and proper person rests with the Commissioner of Police, but the Act makes it clear that it is the Director-General's decision that is under review, and not the Commissioner's determination. Under s 8(2) of the ADR Act, the person or body whose decisions are administratively reviewable is taken to be the only administrator in relation to the making of an administratively reviewable decision, even if some other person or body also had a role in the making of the decision.
As with all legislation, the provisions of the TP Act and the powers that it confers must be construed and applied in such a way as to be consistent with the language and purpose of all the provisions of the Act: Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355, [69]. The Act contains no objects clause, but the Tribunal may have regard to the Minister's second reading speech to ascertain the purpose of the legislation, the mischief that it was designed to cure. The second reading speech on the TP Act noted that the Act was introduced in response to gang crime in New South Wales. It aimed to break the stranglehold that OMCGs had over the tattoo industry. It was expected that removing bikers from the tattoo industry would reduce the reasons for rival gangs to engage in turf wars, because those businesses would no longer be symbols of a gang's territory. The Act's purpose is not, however, limited to eradicating the influence of OMCGs in the industry. The "fit and proper" criterion applied in the Act is of much broader application, as Montgomery SM explained in his comprehensive review of the authorities in Smith, at [38] to [41].
There is no significant difference between the parties' positions as to the meaning of "fit and proper" and "public interest" in the TP Act context. The High Court has explained that assessing whether a person is fit and proper to hold a licence is a value judgment, involving concepts that should not be "narrowly construed or confined" and may extend to "any aspect of fitness and propriety that is relevant to the public interest: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 348. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127, the Court said: The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgement and indeed for rejection. "Fit" (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability…. When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend on its own circumstances (at 156 - 157).
In Bond, Toohey and Gaudron JJ said at 380 - The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
In a much-quoted passage in Sobey v Commercial and Private Agents Board (1979) 22 SASR 70, Walters J had this to say: In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence… but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public… as a person to be entrusted with the sort of work which the licence entails.
In the context of the TP Act, unfitness can be indicated by criminal convictions, criminal associations, habitual recidivism, formal or informal links with OMCGs, failure to implement proper tattooing practices and general disregard for the law. Relevant in this case are Hennessy DP's comments in Saadieh v Director-General, Department of Transport [1999] NSWADT 68, [17]. In the context of a taxi licence, the Tribunal identified factors relevant to fitness and propriety as including:

the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted;
the applicant's reputation in the community; and
the likelihood that the applicant will reoffend, be the subject of further complaints or commit further offences.

As regards the applicant's reputation, McHugh J has pointed out that 'character' refers to the inherent moral qualities of a person and is to be contrasted with reputation, which refers to the public estimation or repute of a person, irrespective of the inherent moral qualities of that person (Melbourne v R (1999) 198 CLR 1, 15).
As regards the public interest issue, that phrase is designed to give the broader interests of the community priority over private interests: Smith, [42]. It 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: Commissioner of Police, New South Wales Police v Toleafoa [1999] NSWADTAP 9, [25]. Further, an applicant's personal interest in retaining his licence cannot outweigh the public interest in having full confidence in the professionalism of people involved in the industry in question: Blissett v Commissioner of Police, New South Wales Police [2006] NSWADT 114, [32].
The criminal history that the applicant accumulated between 2004 and 2011 is detailed in paras 3 to 8 above. It includes three fines for drug offences in May 2004. There is a common assault and an assault causing actual bodily harm (to Naomi Stojkov) in 2004 and two common assault offences (against Ashley H…) in 2008, together with the assault on a police officer in the execution of his duty in 2008 at Newcastle Jockey Club. These matters resulted inter alia in his being placed on three good behaviour bonds and receiving a suspended eight months' sentence of imprisonment. Between 2001 and 2011 he was convicted of nine traffic -related offences, including a PCA and driving while disqualified. He also received a warning letter in 2010 after performing a piercing on a young person who was six weeks under the statutory age of 16, without parental consent.
The security determination (exhibit R2) concluded that the applicant's pattern of behaviour demonstrated a propensity for unprovoked violence and that his behaviour demonstrated poor character and a failure to reform, as well as being an indication of future conduct. He had also demonstrated a disregard for law in general through his repeated failure to comply with traffic legislation. Insufficient time had elapsed since his most recent offences to justify confidence that he would not reoffend.
It is convenient to consider the first and third of the Saadieh factors set out above together, that is, the nature, seriousness and frequency of the applicant's criminal offences and the likelihood that he will offend. His criminal record is most unimpressive, including as it does repeated acts of violence, two of them against women, drug offences and failure to comply with good behaviour bonds. As Walters J said in Sobey, "any propensity towards offending against the law must… be regarded as of crucial importance" (at 75). Viewed on its own, it would justify a conclusion that the applicant was not a fit and proper person to hold a licence.
As against that, however, it is to be noted that the non-traffic offences all occurred within a space of four years and there have been no breaches of that nature since 2008. As his former teacher and school adviser, Ms Kelly, attested, thereby corroborating his parents' evidence, before 2004 he had been well-behaved, diligent and strongly motivated towards positive achievement. His PCA and driving without a licence violations in 2011 appear to have been a temporary relapse from his return to normality and there have been no traffic infringements since 2011.

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 and Director 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 March 2017

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Cases Cited (8)