Duston and Power, re [2002] NZLLA 35 (7 February 2002)

Last Updated: 17 February 2010

Decision No. PH 35/2002 – PH 37/2002

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by ALLAN JOHN DUSTON pursuant to s.118 of the Act for a General Manager’s Certificate

AND

IN THE MATTER of applications by ALLAN JOHN DUSTON and CAROLE BERNISE POWER trading in partnership for on and off-licences pursuant to ss.7 and 29 of the Act in respect of premises situated at 15 Colac Bay Road, Colac Bay, Southland, known as “Colac Bay Tavern”

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at INVERCARGILL on 29 January 2002

APPEARANCES

Mr A J Duston – in person
Mr M J Safaiti – Southland District Licensing Agency Inspector – to assist
Sergeant A R Christie – NZ Police – in opposition

ORAL DECISION OF THE AUTHORITY

[1] There are three applications before the Authority. In the first application Mr Allan John Duston applies for a General Manager’s Certificate. At the same time he and his partner Carole Bernise Power, trading in partnership, have applied for on and off-licences in respect of premises situated at 15 Colac Bay Road, Colac Bay, Southland, known as the “Colac Bay Tavern”.
[2] It is apparent from the evidence that Mr Duston and Ms Power took over the tavern some months ago. They have been trading under temporary authorities ever since. In terms of their ability to trade we have received evidence from the Police and from the District Licensing Agency Inspector that there are no problems with the running of the tavern, or indeed Mr Duston’s or Ms Power’s management of the tavern. The only issue is Mr Duston’s previous convictions for drink driving. The issue is whether those convictions are sufficiently serious that his suitability has been brought into question.
[3] Mr Duston comes before the Authority at the age of 49. He has been self-employed for some 29 years mainly in the fishing business. He has good support in the community and good references. The problem area is that in 1981 he received his first conviction for driving with excessive breath alcohol. He was fined and disqualified.
[4] Approximately ten years later he received his second conviction. On that occasion the breath alcohol level was 950 micrograms of alcohol per litre of breath. Mr Duston was fined $1,300 and disqualified for nine months.
[5] A third conviction occurred, and was recorded in the District Court in Invercargill on 8 February 2000. On that occasion the level was 694 micrograms of alcohol per litre of breath. Once again a fine and six months disqualification was imposed. We understand that at that hearing the first conviction in 1981 may not have been produced. As a consequence the period of disqualification was set at six months rather than the normal twelve month period.
[6] As is generally known, where there are three or more convictions under the Act the maximum penalty has been increased from three months to two years, indicating Parliament’s concern at the proliferation of drink driving. Our concern is based on the case of Vermeer LLA 881/96, in which it was stated:

“If he cannot control his own drinking habits and comply with the law, he is going to be totally unable to influence others to act responsibly and comply with both the Sale of Liquor and the Transport Acts.”

[7] In the case of Marx LLA 946/97, we indicated that we were generally inclined to give little weight to convictions more than ten years old provided there is no offending of any kind since that time, or relating to minor traffic or parking offences or resulting from minor youthful indiscretions. On the other hand we usually give added weight to any conviction or any offence involving or arising from conduct on licensed premises relating to or involving the use or abuse of drugs or alcohol; disclosing two or more serious offences of a similar type for assault; or violent offences against any person. In addition we closely examine any pattern of offending disclosed by the type of convictions listed.
[8] Finally, in Osborne LLA 2388/95, the Authority stated:

“Without fettering ourselves in this or other applications, it may be helpful if we indicate that we commonly look for a five year period free of any serious conviction or any conviction relating to or involving the abuse of alcohol or arising in the course of an applicant’s duty on licensed premises.”

[9] It is tempting in a case such as this where Mr Duston has obvious maturity and good support to grant the application. To do so we would have to be flying against a large number of decisions made by the Authority in the past. The difficulty is that we are dealing in an area in which the abuse of alcohol is a serious issue. Mr Duston has these three convictions, one of which has occurred only two years ago.
[10] We take the view that he is a person who is obviously going to do well in the industry but it is not appropriate at this stage for a person with convictions of this nature to be involved in the sale and distribution of liquor.
[11] We have considered the question of how long Mr Duston should be free of convictions. Because of his character and reputation and because of the way the tavern has been run we believe that a period of four years should elapse from the date of the last conviction. In the circumstances, and for the reasons we have given, the applications are accordingly declined.

DATED at WELLINGTON this day of February 2002

Judge E W Unwin Mr J C Crookston
Chairman Member

duston.doc(aw)