Flavell, re [2004] NZLLA 119 (25 February 2004)

Last Updated: 20 February 2010

Decision No. PH 119/2004

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by ROBERT SIDNEY FLAVELL 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 CHRISTCHURCH on 12 February 2004

APPEARANCES

Mr R S Flavell - applicant
Mr M Ferguson - Christchurch District Licensing Agency Inspector - in opposition
Sergeant J F Armstrong - NZ Police - in opposition

ORAL DECISION OF THE AUTHORITY

[1] The application before the Authority is by Robert Sidney Flavell and is for a General Manager’s Certificate. There is one main concern about the application which relates to the convictions recorded against Mr Flavell.

[2] Mr Flavell has had reasonable experience in the conduct of licensed premises. He started work between seven and twelve months ago at the “Fox’s Hole” in Christchurch. He commenced as a bar person and has worked his way through the tiers to the stage where he now has been appointed as a temporary manager. Mr Flavell has completed a course of training and he has the full support of Mr M C Robinson who is the administration manager of the licensed premises and who is the person who initially hired Mr Flavell.

[3] The premises themselves appear to operate to a late hour in the morning and are regarded by the Police as problem premises. This is primarily because the premises trade through until about 6.00 am. As a consequence, quite a number of patrons come to the notice of the Police, and there are issues relating to intoxication.

[4] It may be that the premises are changing direction. However the way premises are operated is a factor for the Authority to take into account. If Mr Flavell is granted a General Manager’s Certificate he will be asked to ensure that the Act and the conditions of the licence are maintained. In this case he will be dealing with patrons who may create difficulties for him.

[5] The other issue before the Authority is that Mr Flavell has a number of convictions for violence. The first conviction was recorded in 1974, and a second conviction in 1993. On that occasion Mr Flavell was convicted for assaulting a female. He was sentenced to periodic detention and supervision and ordered to pay reparation. Some four months later there was a third charge which involved assault, and resulted in the same sentence.

[6] On 12 March 2001, Mr Flavell assaulted another person with a knife or other stabbing instrument. Prior to being sentenced a month later, he obtained some counselling which seemed to relate to former abuse. Mr Flavell found it of some help. He was sentenced to imprisonment for 15 months, and would have served approximately half of that period of time. There is no indication on the file that he received any form of parole or supervision following his release.

[7] That conviction was recorded just under three years ago. The issue for the Authority is whether we should make an exception of the general rule of thumb which was encapsulated in the decision of G L Osborne LLA 2388/95. In that case the Authority said

“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.”

If a term of imprisonment of 15 months is imposed by a Judge, then quite clearly the conviction must be seen as serious.

[8] Mr Robinson made a strong case for us to give Mr Flavell a trial period. Our view is that standards must be maintained, and that the Inspector was right when he suggested it is up to the Authority to ensure that a consistent message is sent to the industry.

[9] We believe that the application is premature. Our intention is to decline it.

[10] The issue then is when can Mr Flavell look with confidence to the future, and achieve some degree of upskilling in his vocation. In other words when can he expect to step up to management. After due consideration we believe that the rule of thumb in this case should be maintained.

[11] We suggest that Mr Flavell will need to show that five years has elapsed since the date of offending, and that he has been out of trouble during the period of time. If he was to make any earlier application prior to the five year period, he would need to have not only the support of his employer, but the support of a counsellor or psychologist, to satisfy us that there would be no likelihood of repetition of this type of violent offending.

[12] For the reasons that we have attempted to explain, the application must regrettably be declined at this time.

DATED at WELLINGTON this 25th day of February 2004

Judge E W Unwin Mr J C Crookston
Chairman Member

Robert Flavell.doc(afw)