Swaneveld [2000] NZLLA 1151 (22 September 2000)

Last Updated: 16 February 2012

Decision No. PH 1151/2000

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by ANGILA BLODWIN SWANEVELD pursuant to s.118 of the Act for a General Manager's Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

Quorum: Mr R J S Munro
Mr J W Thompson

HEARING at WELLINGTON on 28 June 2000

APPEARANCES

Mr K I Jefferies – for applicant
Sergeant G D Logan – NZ Police – in opposition
Mr R S Putze – Wellington District Licensing Agency Inspector – to assist

DECISION

1. This is an application by Angila Blodwin Swaneveld for a General Manager's Certificate. The application was opposed by the Police on the ground that Mrs Swaneveld had convictions which she had not disclosed when completing her application form. The matter was set down for public hearing.
   
2. At the hearing Mr Jefferies called Mrs Swaneveld who told us that she is 39 years of age, and married with one child. For the last seven years Mrs Swaneveld has worked in two Wellington supermarkets. She is seeking a General Manager's Certificate because she is responsible for the store area where liquor is sold.
   
3. She admitted some, but not all, of the convictions mentioned by the Police.
   

"There has been some confusion with those alleged convictions because at the time my sister used my name when in trouble with the Police resulting in convictions being entered in my name erroneously.

The alleged convictions relate to a period approximately fifteen years ago and at a stage in my life much different from now. I was somewhat a victim of unfortunate circumstances. Although young in years at the time I was heavily influenced by a criminally active and experienced gang I had unfortunately drifted into association with. I was at times plied with illicit drugs / narcotics and I was forced into situations as an unwilling partner, and certain behaviour was motivated by fear to protect my more experienced older and dangerous colleagues. At the time my rationality was overtaken by drug abuse. I spent time at Oddessy House in an attempt to rehabilitate myself. I no longer use drugs. I ran away and escaped from that unsavoury lifestyle really to establish a new life. Since then I have lived a law abiding life and have remained in a stable relationship with my second husband living in suburban Wellington. I am a completely different woman from those days fifteen years ago.

I do have difficulty with the allegation that I have previous convictions as some three to four years ago I was confronted by the local Island Bay Policeman who said he had some informations to serve on me. Those informations related to offences allegedly occurring also some thirteen to fifteen years ago. My memory was hazy as to what had precisely happened so long ago. However my Solicitor handled matters for me with the Court and Police and in 1997 I was diverted from prosecution in respect of those alleged thirteen to fifteen year old offences. I understand diversion is not awarded if one has previous convictions. I produce a letter dated 16.4.97 from Manukau Police District Headquarters addressed to my Solicitor confirming the diversion from prosecution."

4. The letter dated 16 April 2000 addressed to Mr K I Jefferies, as counsel for Mrs Swaneveld, was signed by Senior Constable T P Wipani, based at Manukau Police District Headquarters. It confirmed a telephone discussion with Mr Jefferies on 15 April 1997 and recorded that diversion would be granted for 22 offences and sought reparation of $2,393.55 with a donation of $1,000.00.
   
5. Mrs Swaneveld also produced a number of references from past employers. Her current employer at the supermarket wrote of her:
   

"Her duties have included being our weekend night Senior Supervisor, our stock controller during the week, helping with staff rostering and customer service. (She) is completing her first year in a Management Development Course run by Foodstuffs (Wgtn) Ltd ... recognised by CIT."

6. Sergeant Logan cross-examined Mrs Swaneveld about a telephone conversation he had with her on 1 May 2000:
   

"Q Well, I put it to you ... when I said I was checking to see if you had any criminal convictions your answer to me was 'no I haven't been convicted of any offence'. I then asked if you did get arrested for anything in Lower Hutt about 22 years ago and you replied 'I went to Court for getting into a car but I think I was discharged for that?'

A Yes.
...
Q ... Did you later provide me with a letter regarding your convictions?

A That's correct.

Q In it it says 'I was led to believe that I had no convictions and that there was only one that comes, it was interfering with a motor vehicle on 6/9/78. I was led to believe that this was dismissed by the Judge at the time that I was there. As for the other convictions that have shown up in the report, I have no knowledge of them.' Was that letter written by yourself?

A That was written by me.

Q ... Do you know anything ... about the diversion scheme?

A That if I reoffend again that it will no longer be existing and that I would be prosecuted for the crimes that I had already done.

Q And do you know who diversion is offered to?

A No.

Q ... I've just brought to your attention that diversion isn't just offered to first offenders. It is sometimes offered to people who have offended in the past but there has been quite a period since they last offended and its given a chance to them to turn over a new leaf and in this case your offending had been ten years previously. That's correct isn't it? It was 1997 that you were given diversion?

A That's correct."

7. Sergeant Logan showed Mrs Swaneveld copies of finger prints which she agreed were hers. They had been taken at the Wellington Police Station on 22 May 2000. Sergeant Logan also produced 13 certified copies of convictions that had been obtained from the District Court. The finger prints matched those taken from Mrs Swaneveld.
   
8. At this time Mr Jefferies sought an adjournment to examine the Police evidence. On resumption of the hearing he told us:
   

"... there's no denial that there was a spate of offending in the period 1985-1986 and which the witness has given evidence in respect of and in which some of those matters that she offended for she was subject to a diversion programme in 1997."

9. Mr Jefferies was asked by the Authority if he could explain what had prompted the Police to accept that diversion was appropriate. He said:
   

"I think it was the length of time. It was in fact that she hadn't been in any trouble and she had settled into a new marriage. She clearly had a good job, a degree of stability in her life and they thought convicting something in her past life would serve no useful purpose ... But the diversion was a responsible one.

Reparation was paid to the tune of $2,300 and also there was a donation of $1,000 to a charity ... the Police could see no point in pursuing convictions because she had behaved herself ... and fairly accept that she was now a different woman ..."

10. Mr R S Putze, a Wellington District Licensing Agency Inspector, did not oppose the application. He had interviewed Mrs Swaneveld and he was satisfied with her knowledge of the Sale of Liquor Act and her experience and training.
    
11. Sergeant Logan told the Authority, in answer to questions, that the Police position was that 17 convictions remained in effect:
    

"The applicant is clearly the person who was convicted for the convictions she has disputed ... Police submit that the applicant's willing and deliberate attempts to convince Police she is not the convicted person have been done to conceal from the Authority the offences she did commit in order that she might gain a manager's certificate ... her admission of all of the offences at time of application would not have resulted in opposition to her application, nor this hearing."

12. As a result, the Police seek costs against the applicant for $1,218.33.
    
13. In reserving our decision we invited the applicant to arrange for a drug and alcohol assessment to be provided. Our Secretary has now received a report from Dr Mariette Hopman, a consultant clinical psychologist. In a report under cover from Mr Jefferies received on 1 August 2000, Dr Hopman wrote:-
    

"With regard to current alcohol and drug use, Mrs Swaneveld rarely drinks alcohol ... A series of laboratory tests support this conclusion ... In my opinion Mrs Swaneveld is considered to be functioning well psychologically and her substance use is in long-term remission.

The chances of her relapsing into drug use are minimal, given her insight, her support system and the importance she places on her family and her career ... In my opinion, Mrs Swaneveld would treat the responsibility of a liquor licence (sic) with the respect and seriousness it deserves."

Conclusion

14. In considering any application for a General Manager's Certificate the Authority is directed by s.121(1) of the Act to have regard to the following matters:
    

"(a) The character and reputation of the applicant:

(b) Any convictions recorded against the applicant:

(c) Any experience, in particular recent experience, that the applicant has had in managing any premises or conveyance in respect of which a licence was in force:
(d) Any relevant training, in particular recent training, that the applicant has undertaken and any relevant qualifications that the applicant holds:

(e) Any matters dealt with in any report made under section 119."

15. In determining whether to grant or refuse an application for a General Manager's Certificate the question is whether the character of the applicant has been shown to be such that she is not likely to carry out properly the responsibilities that go with holding a certificate. That test was first applied by Holland J in the High Court in Re Sheard [1996] NZLR 751 at 758. That test has subsequently been applied to applicants for licences and General Manager's Certificates.
    
16. Mrs Swaneveld admitted that in an earlier part of her life she was associated with a criminal element and that she used prohibited drugs.
    
17. Mrs Swaneveld has been guilty of what Mr Jefferies conceded was "a spate of offending" in the past. Subsequently she was granted diversion in relation to other offending which she believed made her convictions a nullity.
    
18. According to Police records her last conviction was on 6 March 1987. She remarried some 10 years ago. Her husband moved with her from Auckland to Wellington, away from the drug environment in which she had lived. During the time she has lived in Wellington she has been employed in various positions. Mrs Swaneveld produced a number of references from past employers. She has now been working for a year in a Wellington supermarket and her employer supports the application.
    
19. Dr Hopman has provided a detailed assessment of Mrs Swaneveld and her conclusion is that "Mrs Swaneveld would treat the responsibility of a liquor licence (sic) with respect and the seriousness it deserves".
    
20. The convictions recorded against Mrs Swaneveld fully justify Police opposition but they are historical. On balance, and after considering the evidence adduced at the hearing, we have decided to grant the application. Mrs Swaneveld should understand the grant is for an initial period of one year and her conduct as a General Manager will be monitored by the Police and a District Licensing Agency Inspector.
    
21. Costs will not be awarded.
    
22. The application is granted.
    

DATED at WELLINGTON this day of September 2000

R J S Munro J W Thompson
Member Member

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