McCallum, re [2002] NZLLA 354 (23 July 2002)

Last Updated: 27 March 2010

Decision No. PH 354/2002

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by MARY HELEN McCALLUM pursuant to s.123 of the Act for renewal of a General Manager's Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at WELLINGTON on 5 July 2002

APPEARANCES

Mr C Anastasiou – for applicant
Mr R S Putze – Wellington District Licensing Agency Inspector – to assist
Sergeant G D Verner – NZ Police – in opposition

DECISION

[1] The applicant was first granted her manager’s certificate on 13 February 2001. At that time she had completed the relevant training requirements, and had produced references to support the application.

[2] The application came about because the family home situated on a farm was to be used as a lodge for homestays and private functions. An on-licence was granted to the lodge on 26 June 2001. The application fell due for renewal in February this year.

[3] Mrs McCallum has given evidence to the effect that she had just come back from her family holidays. She was concerned about getting the application for renewal in on time. She neglected to complete part of the form appropriately. In the application for renewal the question is asked: "Has the applicant been convicted of any offence since this certificate was issued or last renewed?" The box for "No" was ticked.

[4] The Police quite properly have referred this matter to the Authority because in fact there was a conviction. The Police concern was that the box may have been ticked in order to deceive.

[5] Mrs McCallum has given evidence that she looked at the word "convict" and the word "offence", and immediately thought that these words would be referring to a criminal offence. She believed at the time, (although she was in a hurry), that she was answering the question correctly.

[6] This explanation is somewhat surprising in view of the training that she would have had approximately 12 months earlier.

[7] Nevertheless she stated that she had no intention whatsoever of misleading the Agency or this Authority in the way she completed the form. She gave evidence to this effect. We have no reason to doubt her evidence at all. In fact, as her counsel has rather persuasively argued, in all respects the applicant is a suitable person. She is responsible. There is no question that she could carry out the duties of a manager in terms of compliance with the Act and the licence, and in terms of her host responsibility, in an appropriate way.

[8] The criteria for the renewal are listed in s.126. These are:

(a) The character and reputation of the applicant;

(b) Any convictions recorded against the applicant since the certificate was issued or last renewed;

(c) The manner in which the manager has managed the sale and supply of liquor pursuant to the licence, with the aim of contributing to the reduction of liquor abuse;
(d) Any matters dealt with in any report made under s.124 of this Act.

[9] Having accepted the explanation concerning the non-reporting of the conviction we turn to the conviction itself.

[10] Mrs McCallum had gone to Taupo with a friend to a holiday home. She had driven into town to buy groceries. A decision was made to have a meal. A bottle of wine was shared. Mrs McCallum was stopped for speeding. The evidential breath test disclosed a reading of 714 micrograms of alcohol per litre of breath. It is a first conviction for Mrs McCallum, and we are satisfied that it should be the last one.

[11] The Authority has said in the past that if convictions are incurred by holders of General Manager's Certificates, they will be treated with greater seriousness than a conviction recorded against a person who is making an application for the first time. In other words once a person has obtained a certificate, he or she should be more aware of their personal responsibility to the law, and lead by example. In this way the objective of the Act can be achieved.

[12] This issue today is the balancing of the positive aspects portrayed to us by Mrs McCallum's counsel, and the fact that she has a reference from a team policing sergeant working in the city, and the acceptance by this Authority that the offence is a one-off situation. Balancing those factors against the conviction, we have come down in favour of the applicant. However the renewal will be for a shorter period than is normally allowed.

[13] The decision of this Authority is to renew the General Manager's Certificate for 18 months. That will take the current life span of the certificate through to 13 August 2003. That will allow approximately one year for the authorities to monitor the situation although we are confident that there will be no problems. The period will also mean that when the certificate is next due for renewal, two years will have elapsed since the conviction.

[14] The certificate is renewed accordingly.

DATED at WELLINGTON this 23rd day of July 2002

Judge E W Unwin Mr J C Crookston
Chairman Member

mhmccallum.doc (nr)