Learmonth v Hitchcock [2000] NZLLA 1145 (20 September 2000)

Last Updated: 16 February 2012

Decision No. PH 1145 – 1146/2000

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application pursuant to section 135 of the Act for cancellation of General Manager's Certificate No. 2301/99 issued to MICHAEL DAVID HITCHCOCK

BETWEEN GARRY DAVID LEARMONTH (Police Officer, Takapuna)

Applicant

AND MICHAEL DAVID HITCHCOCK

Respondent

AND

IN THE MATTER of an application by MICHAEL DAVID HITCHCOCK pursuant to section 123 of the Act for renewal of a General Manager's Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge J P Gatley
Members: Mr R J S Munro
Mr J W Thompson

HEARING at AUCKLAND on 28 August 2000

APPEARANCES

Constable G D Learmonth – NZ Police – applicant for cancellation and in opposition to renewal
Mrs P M Cudby – North Shore District Licensing Agency Inspector – to assist
Mr M D Hitchcock – respondent and applicant for renewal

DECISION

1. By application dated 11 July 2000 pursuant to s. 135 of the Act Constable G D Learmonth sought cancellation of General Manager's Certificate Number 2301/99 issued to Michael David Hitchcock on the following grounds:
   

"That the Manager has failed to conduct the licensed premises in a proper manner, and in particular it is alleged that he sold alcohol to an under age person, namely 16 year old Anneke Alton (sic) on 3 February 2000 without asking for or sighting the correct evidence of age document."

2. At the hearing before this Authority Constable G D Learmonth produced documentation confirming:
   

a. That Mr Hitchcock had been prosecuted in the District Court under s. 155(1) of the Sale of Liquor Act 1989 with, being a licensee or manager of licensed premises sells or supplies liquor on or from the licensed premises to any person who is under the age of 18 years.

b. The offence is punishable by a fine of up to $10,000 or suspension of the licence for a period not exceeding 7 days, or both.

c. At a "status hearing" before a District Court Judge on the North Shore, the following summary of facts was before the Court:

"At about 7.30pm on 3 February 2000 the Defendant Hitchcock was working at his licensed premises known as Bloomfield Cellars in Takapuna.

He was the only person present in the store at this time when a 16 year old female named Anneke Elton entered the store and took from the displayed stock 2 x 18 bottles of Lion Red beer. Elton then took them up to the counter where the defendant was serving.

The defendant did not ask the 16 year old for any evidence of age documentation and proceeded to sell her the liquor for $40.00.

The 16 year old then left the store with the purchase where she was observed by the Police and spoken to.

In explanation the defendant admitted not asking for evidence of age documentation, however, stated that he had recognised her from the last time she purchased alcohol from his store. He stated that on a prior occasion she produced identification showing she was the correct age. He could not, however, name what that identification was.

The defendant is a 43 year old male who owns/manages the premises in question. He has not previously appeared before the Court."

3. In the District Court Mr Hitchcock initially entered a plea of not guilty. For diversion to be considered a guilty plea is required; the officer in charge did not consider diversion to be appropriate in any event having regard to the seriousness of the offending.
   
4. The District Court Judge who heard the case decided that Mr Hitchcock should be discharged without conviction pursuant to s.19 of the Criminal Justice Act 1985 following a guilty plea, on payment of a donation of $200 to the Salvation Army. The $200 donation was a tax deductible expense for Mr Hitchcock.
   
5. Section 132A of the Act, inserted by s.76 of the Sale of Liquor Amendment Act 1999, provides that on conviction of a licensee or manager of an offence against s.155(1) of the Act, a member of the Police must send a report to this Authority recommending whether the licence should be suspended or cancelled.
   
6. In this case there is no conviction so the provisions of s.132A do not apply. The Police decided to bring the application to suspend Mr Hitchcock's General Manager's Certificate to highlight what they see as light sentencing, in the District Court, of licensees or managers convicted of selling liquor to those under the age of 18 years. By enactment of the Sale of Liquor Amendment Act 1999 Parliament emphasised its recognition of the seriousness of such offending by doubling the fines that can be imposed, and enacting s.132A to put the licence at risk of cancellation. The fine on conviction of sale or supply to a person under the age of 18 years was increased in the Amendment Act from $5,000 to $10,000.
   
7. In the present case on a plea of guilty to an offence under s.155(1) Mr Hitchcock was discharged without conviction on payment of a tax deductible donation to the Salvation Army of $200. Section 19(2) of the Criminal Justice Act 1985 provides that a discharge under that section shall be deemed to be an acquittal.
   
8. The Authority is not in a position to interfere with Mr Hitchcock's off-licence as there is no conviction that would give rise to the Authority considering suspension or cancellation of the licence pursuant to s. 132A of the Act.
   
9. Although we have a Police application for cancellation of Mr Hitchcock's General Manager's Certificate the evidence before us is limited. Mr Hitchcock was dealt with in the District Court by way of a "status hearing". Notwithstanding his guilty plea it has not been proven on the balance of probabilities, or beyond reasonable doubt, that he sold liquor to a person under the age of 18 years on 3 February 2000. The Authority has not seen the 16 year old female Anneke Elton to whom Mr Hitchcock is alleged to have sold "2 x 18 bottles of Lion Red beer". The Authority has not even seen a photograph of Anneke Elton which might have assisted us to form an impression as to whether Mr Hitchcock should have been alert to the possibility that she was under 18 years of age.
   
10. Further, despite Mr Hitchcock's plea of guilty before a District Court Judge at a "status hearing", before this Authority Mr Hitchcock maintained that he had sold Anneke Elton liquor on several occasions only after seeing convincing ID that put her age at 18 years.
    
11. Without Anneke Elton being called as a witness we are not in a position to make any finding as to the validity of Mr Hitchcock's assertion. Section 155(4) of the Act provides:
    

"(4) It is a defence to a charge under subsection (1) or subsection (2) of this section if the defendant proves that the person who sold or supplied the liquor believed on reasonable grounds that the person to whom it was sold or supplied had attained the age of 18 years."

12. This decision will serve little purpose other than to highlight the fact that the Authority shares Police concerns at sentences imposed in the District Court which do not appear to have regard to the increased penalties provided by the Sale of Liquor Amendment Act 1999 with effect from 1 December 1999 where licensees or managers plead guilty, or are otherwise convicted, of sales of liquor to persons under the age of 18 years.
    
13. As we are not satisfied on the evidence that the grounds of the Police s.135 application in respect of Mr Hitchcock have been established the application for cancellation of his General Manager's Certificate will be refused.
    
14. As a consequence of the above finding there is no opposition to Mr Hitchcock's General Manager's Certificate being renewed. General Manager's Certificate Number GM 2301/99 is renewed for a further three years from 21 June 2000, that being the anniversary date of its issue.
    

DATED at WELLINGTON this day of September 2000

_____________________________

Judge J P Gatley

Chairman

hitchcock.doc(aw)