Pay v Spence [2001] NZLLA 241 (11 June 2001)

Last Updated: 5 March 2010

Decision No. PH 241/2001

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application pursuant to s.135 of the Act for cancellation of General Manager's Certificate number 027574 issued to MURRAY DAVID SPENCE

BETWEEN GORDON BRETT PAY

(Police Officer of Invercargill)

Applicant

AND MURRAY DAVID SPENCE

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Mr J C Crookston

HEARING at INVERCARGILL on 11 June 2001

APPEARANCES

Sergeant A R Christie – NZ Police – applicant
Ms D M McDonald – Invercargill District Licensing Agency Inspector – to assist
Mr C W Ward – for the respondent

ORAL DECISION OF THE AUTHORITY

[1] This is an application by Constable G B Pay for the cancellation of General Manager's Certificate 027574. The grounds of the application are that Mr Spence's conduct makes him unsuitable to be the holder of a General Manager's Certificate. The evidence which was given by the Police is as follows:

[2] On the 4th of November 2000, Mr Spence was at Oreti Beach near Invercargill in a vehicle being driven by an associate. Mr Spence took over the driving of the vehicle on the beach. His driving was described as aggressive. He performed a number of "doughnuts" in the sand. In the vehicle was a female associate of his and three children aged 4, 9 and 13 years. As a result of his manner of driving the vehicle rolled and Mr Spence received minor injuries. His passengers were shaken but unhurt.

[3] An evidential breath test on Mr Spence returned a breath alcohol level of 1224 micrograms per litre of breath. On being shown the test Mr Spence commented "it wasn't a bad result" and showed no remorse for the incident.

[4] On 23 January 2001 Mr Spence was convicted of driving with excess breath alcohol and recklessly operating a vehicle. This was his third drink driving conviction.

[5] Mr Spence said he was presently employed by the Invercargill Licensing Trust as the Manager of the Southland Tavern. He is aged 34 years and is currently separated from his wife. He has his only child, Joshua, living with him at the Tavern. He has held a Manager's Certificate for about 12 years.

[6] He has an extensive background in managing licensed premises. After his Manager's Certificate was granted, he was Assistant Manager at the Clyde Tavern and Assistant Manager of the Southland Tavern and has relieved at other ILT premises. About six years ago he obtained his present position as Manager of the Southland Tavern.

[7] What is of extreme concern in this case is that Mr Spence's breath alcohol reading of 1224 was more than three times the legal limit. That in itself was bad enough, but to deliberately choose to operate a vehicle recklessly with three young children in the vehicle, does not meet the self imposed standards that holders of General Manager's Certificates are expected to set themselves to show that they are suitable to have sole charge of licensed premises.

[8] There are three EBA convictions which have been referred to by the Police. The first was in 1987, the second was a refusal for request for blood in 1993, followed by the two recent convictions on 4 November 2000.

[9] We have listened to Mr Spence's explanations. We note that he had a break-up in his marriage and that he believed that he was entitled to drive on the beach, and he did not realise that it was road.

[10] Mr Mulvey gave evidence that Mr Spence is:

"a committed and loyal servant, employee, and a successful manager. He is reliable and relates extremely well to his own team members and the patrons alike and is particularly noted for his honest and forthright approach to all matters in life in general."

[11] People were surprised by Mr Spence's actions. To his credit he has sought counselling and assistance for his alcohol problem. To that end he has had an assessment and counselling which was carried out by the Rana Clinic. He has also discussed his offending and his alcohol assessment and counselling with Mr Mulvey, the General Manager of the Licensing Trust. He is currently receiving treatment over six weekly sessions, although that has now changed to fortnightly.

[12] He has made an attempt to rectify his problems and to that end he has a support system in place provided by Mr Mulvey, and the Licensing Trust. However, we note that while he has made real attempts to control his alcohol consumption, it is clear that it is not yet completely under control.

[13] In this case the Police have asked for cancellation. We note that this Authority in Marx (LLA decision 946-947/97) said:

"we usually give added weight to any conviction –

(a) for any offence occurring on or involving or arising from conduct on licensed premises; and

(b) relating to or involving the use or abuse of drugs or liquor."

[14] Mr Spence has had three convictions over a 13 year period, at roughly six yearly intervals. We note s.135(6) of the Sale of Liquor Act which says:

"If the Licensing Authority are satisfied that either of the grounds specified in subsection 3 of this section is established, and that it is desirable to make an order under this section, it may by order:

(a) suspend the certificate for such a period not exceeding six months as the Licensing Authority thinks fit; or

(b) cancel the licence."

[15] In this case Mr Spence's conduct was such as to warrant cancellation, but because of the presence today of Mr Mulvey and the support of the Trust and his fellow employees, we have decided to take the unusual step of suspending rather than cancelling the certificate.

[16] Although Mr Ward suggested suspension would be seen as a punishment, we are not satisfied that Mr Spence is out of the woods in terms of his personal life. Therefore his suspension shall be for a period of six months from today.

DATED at INVERCARGILL this 11th day of June 2001

Judge E W Unwin J C Crookston
Chairman Member

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