Harwood v Sinclair [2003] NZLLA 98 (28 February 2003)

Last Updated: 20 February 2010

Decision No. PH 98/2003

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 071/GM/52/02 issued to IVAN BARRY SINCLAIR

BETWEEN TIMOTHY FRANCIS HARWOOD

(Police Officer of Invercargill)

Applicant

AND IVAN BARRY SINCLAIR

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at INVERCARGILL on 19 February 2003

APPEARANCES

No appearance by or on behalf of respondent
Sergeant P Stratford - New Zealand Police - applicant

ORAL DECISION OF THIS AUTHORITY

[1] This is an application brought by the Police for the cancellation of a General Manager’s Certificate. The ground for the application is that the conduct of the manager is such as to show that he is not a suitable person to hold a certificate. In particular it is alleged that when he was granted his General Manager’s Certificate on 29 May 2002, he was warned that any indiscretions would result in an application to cancel the certificate. On 8 November 2002, Mr Sinclair had been arrested on charges of driving with excessive breath alcohol content, dangerous driving and supplying false details.

[2] At the time of the alleged offending, Mr Sinclair was the holder of a current General Manager’s Certificate. When Mr Sinclair made his application for a General Manager’s Certificate, a search of his previous convictions disclosed that he had no less than five convictions against the breath and blood alcohol provisions of the Transport Act, and five convictions for driving while disqualified. Some of the convictions extended back over 20 years. For example Mr Sinclair was first convicted for driving with excessive blood alcohol content on 22 February 1978. His subsequent convictions were in 1980, in 1983 and in 1998. He first commenced driving while disqualified in 1979, and he had convictions in 1980 and 1983. It may well be that when he made his application, the Police and the District Licensing Agency were satisfied that there had been a gap of approximately four years in the rate of offending. With the support of a licensee Mr Sinclair was given a final opportunity.

[3] At about 2.00 am on Friday 8 November 2002, some six months after he had been granted a General Manager’s Certificate, Mr Sinclair was driving his Mazda car on the Lorneville-Dacre Highway. The Police had received a complaint about his erratic driving, and observed that he was travelling at high speed. He was pursued for a short distance at speeds of up to 140 kph. When stopped, he was found to be highly intoxicated, and unsteady on his feet and with slurred speech. He supplied his brother’s name when asked for his details.

[4] The evidential breath test which was administered gave a reading of 1040 micrograms of alcohol per litre of breath. This is an extremely high level. The Police took the view that Mr Sinclair appeared to show little concern for his actions.

[5] Mr Sinclair was eventually taken before the court. On 18 December 2002, he was sentenced to imprisonment for a period of three months on charges of driving dangerously, giving false information and driving with an excessive breath alcohol content.

[6] A right to apply for home detention was granted. Constable Timothy Francis Harwood visited Mr Sinclair at the prison to advise him of the application for cancellation. At that time Mr Sinclair expressed little desire to oppose the application. Mr Sinclair has not appeared today to answer the allegations.

[6] In a recent decision of the Authority being Martin Ferguson v Alistair Robert Lyon LLA PH 57/2003 we made a number of comments about the issue of alcohol abuse. These comments included the following:

“New Zealand’s drinking culture has become defined by many factors and social changes. Its manifestation is often seen in binge drinking or drinking harmfully. If the object of the Sale of Liquor Act is to be taken seriously then eventually standards of good drinking behaviour will to be set. Because people are inclined to be tolerant of alcohol abuse then the focus must inevitably fall on the law. If the law becomes tolerant towards this behaviour then the object of the Act will lose credibility. If managers of licensed premises are shown to lack discipline then why should patrons take the issue seriously. The behaviour currently exhibited by younger drinkers is but a symptom of the malaise.

It is our view that if managers are guilty of breaches of the drink driving provisons of the Land Transport Act they must expect their certificates to be suspended for a period. The length of the period should represent a balance between the seriousness of the offending and maximum term of six months. In the majority of cases such a result would be seen by the Authority as a desirable step towards the promotion of the object of the Act.”

[7] In this case we believe that the ground specified has been established. We also believe that in the light of the offending and the previous convictions, it is desirable to make an order for cancellation. General Manager’s Certificate number 071/GM/52/02 issued to Ivan Barry Sinclair is hereby cancelled.

DATED at WELLINGTON this 28th day of February 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

Sinclair.doc(afw)