Payne v McCracken [2003] NZLLA 99 (28 February 2003)

Last Updated: 20 February 2010

Decision No. PH 99/2003

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 GM 2000/6 issued to CHERYL MAREE McCRACKEN

AND PETER IAN PAYNE

(Police Officer of Invercargill)

Applicant

AND CHERYL MAREE McCRACKEN

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at INVERCARGLL on 19 February 2003

APPEARANCES

Miss C M McCracken – respondent
Sergeant P Stratford – New Zealand Police - applicant

ORAL DECISION OF THE AUTHORITY

[1] This is an application by the Police for the cancellation of a General Manager’s Certificate. Sergeant P Stratford has accepted that the Authority has the discretion not just to cancel the manager’s certificate, but also to suspend it, if it deems that course of action would be more appropriate.

[2] The grounds for the application were twofold. First that the manager had failed to conduct the licensed premises in a proper manner, and secondly that the conduct of the manager was such as to show that she was not a suitable person to hold the certificate. In particular the grounds were stated to be the fact that the manager had been convicted on 22 October 2002 on a charge of theft as a servant.

[3] Miss McCracken was first granted her General Manager’s Certificate on 19 May 2000. The certificate was renewed for a period of three years to 18 May 2004. Miss McCracken was employed at the “Hollyford Boulevard Restaurant and Bar” in Te Anau as a restaurant manager on or about 27 November 2000. She worked at this restaurant and bar for almost two years. In February 2002, it seems that she began to suffer some financial difficulties. As a result she began to steal money from her employer. Over a period of approximately six to eight months she was able to complete a void transaction on the restaurant till, and remove sums of money from the till without replacement. It is alleged that there were approximately 60 of such illegal withdrawals, involving a total of just over $2,000.

[4] Miss McCracken was taken before the District Court in Invercargill, and on 22 October 2002 she was convicted and fined $500. No order for reparation was made. The issue of reparation was resolved between Miss McCracken and her employer by the transfer to her employer of her motor vehicle, which was assessed as being worth at least that amount.

[5] At the time that Miss McCracken was spoken to, she showed considerable remorse. She is 23 years of age. She has never before appeared in a Court. The Police Sergeant advised us that Miss McCracken was thought of very highly by her employer, subject of course to the fact that she had breached the trust in her.

[6] Miss McCracken has given evidence. There is no question that she is very remorseful for her actions. She has obtained work at the “Settlers Steakhouse and Bar”. We have a certificate from the owner/manager of that bar to say that they are aware of her previous offending. They have decided to give her a chance. They are happy to have her in their employment as she is a hard worker and has considerable skills which could be lost to the industry, if her manager’s certificate were to be cancelled.

[7] We have considered this matter. There is no question in our mind that the grounds specified in s.135 of the Act have been established. We have taken into account the fact that in this case there was no abuse of liquor, the reduction of which forms part of the object of the Act. Indeed pursuant to s.4(2) of the Act, our discretions and powers should be exercised in a manner that is most likely to promote the object of the Act.

[8] On the other hand a breach of trust is always to be regarded as serious. There is no question that it shows a lack of suitability to carry out the responsibility of holding a manager’s certificate. In this case Miss McCracken now has a partner. She has a job and her remorse is obvious.

[9] We have decided therefore to suspend the manager’s certificate rather than to cancel it. It will however be suspended for the maximum period of six months.

[10] The decision of the Authority therefore is for General Manager’s Certificate number GM 2000/6, issued to Cheryl Maree McCracken, to be suspended for six months from the date of hearing.

DATED at WELLINGTON this 28th day of February 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

McCracken.doc(afw)