Rogers, re [2004] NZLLA 499 (28 July 2004)

Last Updated: 9 July 2010

Decision No. PH 499/2004

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by PHILIP NEIL ROGERS 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 WELLINGTON on 16 July 2004

APPEARANCES

Mr B A Jones - agent for applicant
Sergeant G D Verner - NZ Police - in opposition
Mr R S Putze - Wellington District Licensing Agency Inspector - to assist

ORAL DECISION OF THE AUTHORITY

[1] This is an unusual application brought by Philip Neil Rogers for the grant of General Manager’s Certificate. It is unusual because Mr Rogers has been the subject of a conviction involving very serious offending for which a sentence of imprisonment was imposed. On the other hand the offending took place between 13 and 15 years ago. Since that time, Mr Rogers has taken a large number of steps to address the cause of his offending. To a large extent is no longer regarded as a threat to members of the community.

[2] The issue in the end is whether Mr Rogers satisfies the criteria set out in s.121 of the Act. The criteria are listed as:

(a) The character and reputation of the applicant:

(b) Any convictions recorded against the applicant:

(c) Any experience, in particular recent experience, that the applicant has had in managing any premises or conveyance in respect of which a licence was in force:

(d) Any relevant training, in particular recent training, that the applicant has undertaken and any relevant qualifications that the applicant holds:

(e) Any matters dealt with in any report made under section 119.

[3] In summary it has been said that what the Authority must be satisfied about in terms of suitability, is that Mr Rogers if granted a manager’s certificate, will uphold the Sale of Liquor Act. We need to be confident that if the application is granted, there would be no sales to intoxicated persons or minors or other breaches of the Act leading to liquor abuse. That is what the object of the Act is about.

[4] Mr Rogers is 54 years of age. He has been employed as a barman at the “Blue Note” in Cuba Street, Wellington, since October 2003. Looking at his previous work experience and the references that he has provided, Mr Rogers could be said to be overqualified to be the manager of licensed premises. In other words if one ignores for the moment the previous convictions, Mr Rogers is a person who qualifies in all respects for a General Manager’s Certificate. He has received a course of training. He has experience, including the fact that back in 1984 he was granted an ancillary manager’s certificate where he assisted in running a sports club.

[5] Mr Rogers also has the support of the licensee of the “Blue Note” bar who has seen fit to come before the Authority to confirm that he has been appointed from time to time as a temporary manager. The licensee is confident that Mr Rogers understands the responsibilities of being a manager. He is very supportive of the application. The licensee is well aware of the offending. Mr Rogers’ knowledge of the Act and managerial ability, has been confirmed by the District Licensing Agency Inspector.

[6] The issue then is the offending. The Judge who sentenced Mr Rogers in April 1999, stated that the offending occurred between 1987 and 1991. He confirmed that the offending involved three boys who were 14 or 15 at the time. The third boy was aged between 10 and 14. Two of the boys were brothers and lived next door. The offending descended to what was described by the Judge as a number of grubby and degrading incidents. The Judge described the offending at a very high level in terms of culpability. On the other hand the Judge took into account that Mr Rogers was a first offender who had acknowledged his guilt and spared the complainants of having to give evidence about what they said had happened to them. Furthermore, he acknowledged that the offender had not only damaged the victims but damaged his own family, all of whom were devastated by the knowledge of what had happened.

[7] The applicant was sentenced to six years imprisonment. He had previously indicated a wish to attend the Kia Marama programme in Rolleston Prison. Because of administrative difficulties within the Corrections Department this did not happen. However, Mr Rogers was treated over a period of approximately three months by a senior psychologist and his assistant. The psychological report showed that Mr Rogers attended all sessions and that he was an active participant who demonstrated a high understanding of much of the material. Some years prior to his imprisonment, Mr Rogers had realised what he was doing and had undertaken the changes necessary to maintain an offence free lifestyle. The senior psychologist therefore considered that in June 2001, Mr Rogers presented a low risk of reoffending.

[8] It should be added by way of background that after the last offendings in 1989 or 1991, Mr Rogers realised what was happening and confided in a neighbour who has been his mentor ever since. It was a disclosure by one of the boys who was now a young man that eventually led to Mr Rogers being convicted.

[9] Mr Rogers was released from his imprisonment on 24 March 2003, on 18 months parole. He complied with all aspects of his parole and impressed the probation officer with his resolve to re-establish himself in the community and in the employment arena. The probation officer went as far as to say that she was sure that he would make a positive contribution to any business due to his enthusiasm, skill base, and ability to communicate well with a wide range of people. As part of his treatment and as part of addressing the offending, Mr Rogers was required to submit a safety plan. His supporters include his wife from whom he separated, the senior psychologist, the mentor referred to earlier, and his brother-in-law.

[10] The Authority has dealt with other situations where serious offending has occurred. The major decision setting out guidelines is the case of G L Osborne LLA 2388/95. In that decision 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.”

[11] At some stage in that decision the Authority indicated that the period of time should run from the date of offending. In other decisions the reconstituted Authority has queried why that should be the case. In our opinion the time in which a person can show that he or she has learned from what has happened in the past and has moved on, should in fact run from the date of the offending.

[12] If we look at that date of offending, then some 13-15 years has now elapsed. As indicate earlier Mr Rogers has shown that he has the capacity to hold down the responsibility of a General Manager’s Certificate. It is accepted that the Authority should be concerned about the potential possibilities of reoffending within a licensing context. But having heard all the evidence, we have come to the view that the time has now come for Mr Rogers to take the next step in his now chosen career. Because of the period of time that has elapsed, and because of the circumstances which led to his deciding to stop the offending, we are prepared to grant the application.

DATED at WELLINGTON this 28th day of July 2004

Judge E W Unwin Mr J C Crookston
Chairman Member

Philip Rogers.doc(afw)