Wilkie, re [2002] NZLLA 333 (19 July 2002)

Last Updated: 20 March 2010

Decision No. PH 333/2002

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by NICOLA PHILLIPPA WILKIE pursuant to s.118 of the Act for a General Manager’s Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at ROTORUA on 4 July 2002

APPEARANCES

Mr W R ah Chan – for applicant
Ms J A Smale – Rotorua District Licensing Agency Inspector – in opposition
Sergeant W Morehu – NZ Police – in opposition

ORAL DECISION OF THE AUTHORITY

[1] This is an application for a General Manager’s Certificate. The applicant, Nicola Phillippa Wilkie, will be 21 years of age next month. The criteria which this Authority must take into account are contained in s.121 of the Act. These criteria have been largely satisfied. It is on the issues of the character and reputation of the applicant, and the convictions recorded against her that there is some question.
[2] In terms of experience the evidence shows that Miss Wilkie came up from Wellington to work at the “Café DNA” late last year. She had had some experience working in licensed premises, and she has since taken over the day-to-day running of the café along with her partner. The owner of the café reports in glowing terms of her maturity, and her level of commitment to the running of the café. It is clear that Miss Wilkie has a potentially fine future in the hospitality industry. The application which was filed late last year was also accompanied by a certificate from W A Consulting Group, confirming that she had completed the Sale of Liquor Act Unit 4646 and Host Responsibility Module Unit 16705. The Agency Inspector confirmed that Miss Wilkie displayed an excellent knowledge and understanding of the legislation.
[3] When the application was first filed, the Police recorded that Miss Wilkie had four convictions involving the speed limit, a careless driving charge and a drink/driving charge in 1999. Nevertheless, at that time the Police did not oppose the application. The Agency Inspector expressed some concerns. However, she respectfully suggested that the Liquor Licensing Authority grant the application for the period of a year, with the proviso that should there be any convictions within that period, then an application to suspend or cancel the certificate under s.132 would be lodged. The Authority was not prepared to accept a conditional recommendation and returned the file. In a thoughtful report the Inspector expressed concern about the speeding conviction last year, although accepting that this did not relate to the use or abuse of alcohol. Her concern was whether a person who was not prepared to obey the rules of the road, might be equally flippant with the rules concerning the sale of liquor.
[4] Accordingly the opposition was recorded and the matter set down for a hearing. We acknowledge the contribution made by all the parties to the argument. In the end, this is a balancing exercise. The position is that on 23 November 1999 Miss Wilkie was convicted in the Upper Hutt District Court of driving with an excessive breath alcohol content. The level on that occasion was 510 micrograms of alcohol per litre of breath. The Police take the view that a period of five years should elapse from the date of that conviction. They acknowledge that in the well-known Osborne decision, LLA 2388/95, it was stated:

“Less serious convictions are also weighed. By way of example is an isolated excess breath/blood conviction or a single driving offence disclosing no pattern of offending. In these and similar cases we frequently indicate that a minimum of two years from the date of conviction may result in subsequent favourable consideration.”

[5] It is now a little over two years since the date of that conviction. There will be concern with the speeding convictions, although in a relatively frank letter supported by her evidence Miss Wilkie said that there was no excuse for getting the tickets. She hoped that these would be treated as mistakes of youth and not an indication of her general character.
[6] The evidence has persuaded us that this is the case. In our judgment Miss Wilkie is a person in whom we can have faith that she will uphold the law. As we are satisfied on that count, we have decided to exercise our discretion in her favour. The application is granted.

DATED at WELLINGTON this 19th day of July 2002

Judge E W Unwin Mr J C Crookston
Chairman Member

wilkie.doc(aw)