Davydov v Office of Fair Trading – Industry Licensing Unit [2024] QCAT 189

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Davydov v Office of Fair Trading – Industry Licensing Unit [2024] QCAT 189 PARTIES: DMYTRO DAVYDOV (applicant) v OFFICE OF FAIR TRADING – INDUSTRY LICENSING UNIT (respondent) APPLICATION NO/S: OCR336-22 MATTER TYPE: Occupational regulation matters DELIVERED ON: 7 May 2024 HEARING DATE: 18 April 2024 HEARD AT: Brisbane DECISION OF: Member Richard Oliver ORDERS: The decision of the Respondent is confirmed. CATCHWORDS: PROFESSIONS AND TRADES – OTHER OCCUPATIONS – where the applicant applied for a renewal of his tattoo operator licence – where the application was rejected by the respondent on the grounds he was not a fit and proper person to hold a licence nor was it in the public interest – where applicant was convicted on two counts of sexual assault whilst tattooing a female – where sentence of imprisonment imposed suspended for two years – where suspension period has not expired – where the applicant had no previous criminal history – where convictions considered in determining fit and proper person – whether the applicant was a fit and proper person to hold a licence – whether in the public interest. Queensland Civil and Administrative Tribunal Act 2009 s 20 Tattoo Industry Act 2013 (Qld), s 3, s 6, s 7, s 10, s 11, s 11A, s 12 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Bartley Department of Fair Trading – Industry Licencing Unit [2015] QCAT 450 Capper v Office of Fair Trading [2022] QCAT 407 Smith v Commissioner of Police, NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184 -- 1 of 6 -- 2 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: Mr Moisuc (Principal Legal Officer) of the Respondent REASONS FOR DECISION [1] Until 17 November 2022 the applicant was the holder of a tattoo operator licence under the Tattoo Industry Act 2013 (Qld) (‘the Act’). His application for a renewal of the licence was rejected by the respondent on the grounds that the applicant was not a fit and proper person to hold a licence, also it would not be in the public interest.1 The reason for that determination was because on 15 August 2022 the applicant pleaded guilty in the District Court to two counts of sexual assault on a female. Judge Wooldridge sentenced him to 9 months imprisonment on Count 2, and 3 months imprisonment on Count 1, to be served concurrently. The sentence was wholly suspended for 2 years provided that the applicant did not reoffend. The suspension does not mitigate the seriousness of the offences. Also, it is admitted by the applicant that the offences occurred when he was undertaking tattooing work on a customer at his place of business. [2] There is no other basis upon which it is alleged the applicant is not a fit and proper person. There is no history of similar or other offences and that is evident from the fact that he had been considered to be fit and proper by the respondent when the original operator licence issued to him. He has been involved in his business of a tattooist for some 20 years without blemish. Legislation [3] The main purpose of the Act is to regulate the body art tattooing industry and minimise the risk of criminal activity in the industry.2 This is achieved through a licencing process requiring all persons engaging in the body art industry to be licenced. There are penalties for failing to have the appropriate licence to engage in tattooing.3 [4] There are two types of licence that can be obtained, an operator licence or a tattooist licence. The former permits a licensee to carry on business on the licensee’s own behalf or on behalf of another person at the licensed premises. The latter authorises the licensee to perform body art tattooing procedures.4 A license can be issued with conditions.5 The applicant’s operator licence was unconditional. [5] Sections 11 and 11A set out the information required to be provided to the chief executive to obtain a licence, which includes a person’s details, proof of identity, the consent to use or supply fingerprints and payment of the regulated fee for a licence. [6] In considering the application or renewal of an application the chief executive must be satisfied as to the matters referred to in s 12 of the Act, which includes: (a) the application is properly made; and 1 Tattoo Industry Act 2013 (Qld), s 12. 2 Ibid, s 3. 3 Ibid, s 6. 4 Ibid, s 9. 5 Ibid, s 10. -- 2 of 6 -- 3 (b) the applicant is a fit and proper person to hold the licence; and (c) it would not be contrary to the public interest for the licence to be granted. [7] In deciding the application, or renewal, the chief executive must have regard to various matters set out in s 12(2) which include: (a) the criminal history of the applicant; (b) …………… (c) information about the person that indicates- (i) the person is a risk to public safety; or (ii) the holding of a licence by the person would be contrary to the public interest. The assaults [8] It is relevant to record the nature of the assaults for which the applicant was convicted in the context of him engaging in his occupation as a tattooist. The circumstances are set out in the Court’s sentencing remarks,6 based on an agreed statement of facts, and summarised below. [9] The complainant was a 31-year old woman who attended the applicant’s premises to get a tattoo on her back. She had been there before, and they were known to each other. There were initial discussions about the design of the tattoo and during this discussion, and prior to the procedure, they both shared some wine. After a little while the procedure commenced with the complainant removing her bra and pulling down her sleeve to expose the area on her back where the tattoo was to go. [10] More wine was consumed during the procedure and the applicant used endearing words to the complainant and then tried to kiss her, and despite being rebuffed, he continued with the attempts at kissing on her cheek and neck. The applicant was told to stop several times but persisted. The applicant then squeezed the complainant’s breast on the outside of her shirt. The sentencing remarks then record that when the complainant tried to pull away the applicant then placed the complainant’s hand on his penis. This final assault caused the complainant to then get up from the chair, gather her belongings and leave the premises in a distressed state. [11] The complainant having made a complaint to police about the applicant’s conduct, he was charged and ultimately pleaded guilty on indictment to two counts of sexual assault. [12] Importantly for the purposes of this review application the Court noted: • the assault occurred at the applicant’s place of business; • the complainant was vulnerable because she consumed alcohol at the applicant’s suggestion; • she was in a partial state of undress whilst the applicant was doing the tattooing; • in the circumstances the conduct was opportunistic; 6 Ex 4 – s 21(2) documents page 73. -- 3 of 6 -- 4 • also, she clearly rejected the applicant’s attempts of intimacy; • the complainant now has a tattoo (or partial tattoo) to continuously remind her of the assault. [13] The above not only demonstrates the seriousness of the conduct, but also the fact that it occurred whilst the applicant was utilising the license conferred under the Act. [14] In mitigation, although not particularly relevant to the application, the applicant entered an early plea of guilty, sought to explain the incident in a letter from his solicitor to the respondent7 contending that he misunderstood the complainant’s intention. [15] It is accepted that apart from the conviction, the applicant is otherwise of good character. He has provided references8 from friends and associates who attest to his good character. They also include commendations about the professionalism and manner in which the applicant operates his tattoo studio. He is respectful of those he associates with. [16] The applicant made submissions at the hearing, accepting responsibility for his conduct, and showed genuine remorse. Although he holds professional qualifications from Ukraine, they are not recognised here so he commenced his tattoo business. He has not come to the attention of the respondent in all the years of operation and had satisfied the criteria under the Act to hold a licence. The business is his only source of income, and he has no other transferrable skills to generate employment. Fit and proper person [17] The phrase fit and proper person must be considered in the context of the activities the subject of the inquiry and whether the conduct is likely to occur in the future. As the High Court said in Australian Broadcasting Tribunal v Bond:9 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. [18] A useful summary of judicial consideration of the phrase can also be found in Smith v Commissioner of Police, NSW Police Force & NSW Fair Trading.10 This case involved the tattoo licensing regime in New South Wales and cited a number of 7 Appendix “B” to the application for review. 8 Exhibit 2. 9 (1990) 170 CLR 321 per Toohey and Gaudron JJ at [36]. 10 [2014] NSWCATAD 184. -- 4 of 6 -- 5 statements from cases including Sobey v Commercial and Private Agents Board,11 where Walters J said: 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. [19] In a similar context, I have been referred to Bartley v Department of Fair Trading – Industry Licensing Unit12 where an application for a tattoo licence was rejected because the applicant was convicted of a sexual assault on a 16-year-old female to whom he was giving a tattoo on her hipbone. The application came about as a result of the introduction of the legislation in 2013. Despite the conviction occurring some 10 years earlier, the Tribunal had regard to the discussion of “fit and proper person” in Bond, referred to above and concluded that: [40] The Tribunal is of the view that not only is there a public interest in the proper regulation of the tattoo industry pursuant to the relevant legislation but that the protection of the public is an important factor to be taken into account along with the public safety and public confidence in the administration of the licensing regime. [41] …………. [42] However, the circumstances surrounding the criminal conviction of sexual assault on a 16-year old weighs in favour of a finding that Mr Bartley is not a fit and proper person. [43] We are of the view that Mr Bartley is not a fit and proper person to hold a licence and it would be contrary to the public interest for a licence to be given to Mr Bartley Consideration [20] The very purpose of the licensing regime is to ensure that those undertaking tattooing practices are fit and proper persons to do so. The practice of tattooing has a risk, identified in s 3 of the Act, of attracting criminal activity. Until this incident the applicant had not engaged in any criminal activity. [21] The evidence from the applicant, including the history of conducting the business, and those that have supplied references, suggests that the applicant’s offending conduct is out of character. However, it is clear that he took advantage of the complainant’s situation being at his studio, supplying alcohol, and then attempting intimacy without her consent, and when she was in that vulnerable situation, sexually assaulted her. The seriousness of the conduct is reflected in the term of imprisonment imposed by the Court. The fact the sentence was suspended for two years essentially reflects the applicant’s otherwise good character, remorse and general reputation in the community.13 11 Ibid at [27]. 12 [2015] QCAT 450. 13 Exhibit 3 – s 21(2) documents, page 76, sentencing remarks (line 20). -- 5 of 6 -- 6 [22] In conducting this review application, the Tribunal’s function under section 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) is to produce the correct and preferable decision on the merits. As has often been said the Tribunal stands in the shoes of the decision maker having regard to all of the evidence produced at the hearing. [23] Having considered that evidence and the authorities referred to above, I have come to the view, for the reasons stated, that the applicant is not a fit and proper person to presently hold a licence under the Act, nor is it in the public interest at this time that he do so. [24] It was submitted by the applicant that a licence could issue with appropriate conditions like those suggested in the letter from his solicitor to the respondent. That is, his licence would be conditional upon him only providing tattooing services to females in the company of another person. I agree with the respondent that such a condition would be too difficult to monitor and enforce. Also, with the suspension period still in force he is effectively still under a sentence because any criminal conduct on the part of the applicant could have him before the Court once again. [25] I would, however, observe that having regard to his otherwise good character and with the expiration of the suspension period imposed with the sentence, and the passage of time,14 he may then be eligible for a licence. Also, it is unlikely the applicant will engage in such conduct in the future. However, those are matters for the respondent to consider if an application is made. [26] Therefore, the correct and preferable decision is that the decision of the respondent is confirmed. 14 Capper v Office of Fair Trading [2022] QCAT 407 following Petracaro v Commissioner of Consumer Affairs (1994) 62 SASR 387. -- 6 of 6 --