Paukofe, re [2004] NZLLA 611 (6 September 2004)

Last Updated: 24 November 2010

Decision No. PH 611/2004

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by MONIQUE SESE PAUKOFE 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 AUCKLAND on 25 August 2004

APPEARANCES

Mr R H Byrant –agent for applicant
Ms M J McLeod - Auckland District Licensing Agency Inspector - in opposition
Constable S A Drury - NZ Police - in opposition

ORAL DECISION OF THE AUTHORITY

[1] When Parliament passed the Sale of Liquor Amendment Act 1999, it amended s.115(1) to emphasise the fact that a manager must be on duty at all times when liquor was being sold or supplied to the public. All managers would be responsible for ensuring that the premises complied not only with the Act but also with the conditions of the governing licence.

[2] The reasoning behind the amendment was to encourage the drive to raise the standards of those charged with the responsibility of supplying liquor to the public. The expectation was that management of licensed premises would be conducted only by persons of integrity, committed to supervising the sale and supply of liquor, and the safety of the patrons, and concerned to give real meaning to the term ‘host responsibility’. The ultimate aim was to achieve the Act’s objective of reducing the incidence of liquor abuse.

[3] In a number of cases where the Authority has stressed the need for standards of general managers to be raised. The principle is perhaps best expressed in the decision of Deejay Enterprises Limited LLA 531 – 532/97 where it was stated:

"The guiding hand or hands-on operator of any company or the potential holder of a General Manager’s Certificate now receive greater scrutiny from both the Police and other reporting agencies. Character and reputation are closely examined. The law and human desires of patrons frequently tug in different directions. The Police cannot be everywhere. Little but a licensee’s or manager’s character and suitability may stand between upholding the law and turning a blind eye. Self imposed standards in accordance with the law must be set by licensees and holders of General Manager’s Certificates who control and manage licensed premises."

[4] There are a very large number of certificates issued in this country. It needs to be cause for reflection that each time a certificate is issued, it represents confirmation that either the agency or the Authority has complete confidence in the person to run licensed premises on their own. It can be a form of reference indicating that the person has passed a fairly rigorous test.

[5] Against that background we now deal with an application by Monique Sese Paukofe for a General Manager’s Certificate. Ms Paukofe is supported in her application by Mr Robyn Bryant of Tachelle Consulting Services. Ms Paukofe brings to the application a large number of positive attributes. She has completed a course of training with Tachelle Consulting Services. She has been working for “Ms Q’s Pool Bar and Café” for four years, although during part of that time she worked for a call centre.

[6] She has the full support of the managing director of the company which operates “Ms Q’s Pool Bar and Café”. Indeed Mr Button has seen fit to come before the Authority to support her application. He says that Ms Paukofe is the most senior staff member currently employed who does not have a General Manager’s Certificate. He had not been fully aware of all the previous convictions, but nevertheless, he is very happy for Ms Paukofe to step up in the business. He believes that she is trustworthy and honest and has a good knowledge of her responsibilities to the Act. Indeed he confirmed that she had been appointed as a temporary manager on four to five occasions.

[7] When she made her application, Ms Paukofe declared four previous convictions. Her actual history reveals 12 convictions dating back to 1996. As is well known, the Authority has often expressed concern about the failure to disclose fully any list of convictions. When this happens, an inference can be drawn that there has been misrepresentation, giving rise to a finding of dishonesty, and therefore unsuitability.

[8] Ms Paukofe has given evidence and stated that she forgot about the other convictions. Indeed when she gave evidence, she appeared not to have a full realisation of the actual extent of the convictions.

[9] However it is the convictions themselves which give rise to the most concern. Ms Paukofe started offending in 1996. The convictions were basically for dishonesty. However over a period between 1996 and 2003, there were two convictions involving cannabis. Ms Paukofe has said that these were a result of peer pressure when she was young, and it has been five years since she has been involved with the use or abuse of that particular drug. There was a conviction in 1999 for minor dishonesty. There was a conviction for driving with excess breath alcohol content in February 2000 which is over four years ago. That conviction revealed a level of alcohol in the breath of 612 micrograms of alcohol per litre of breath. Ms Paukofe was fined and disqualified.

[10] More recently however, there was a conviction in 2000 for possession of cannabis for which Ms Paukofe was convicted and discharged. On 12 May 2002, there was an incident involving an argument about the non receipt of certain credits following the purchase of petrol. There was an argument with an employee at the service station. Ms Paukofe alleges that she was grabbed, and in response threw an eftpos machine at the attendant. The matter was defended, and it was not until 8 April 2003 that the Judge convicted Ms Paukofe and ordered her to pay $1500 which was the cost of the damage to the eftpos machine. Ms Paukofe was convicted and discharged in respect of the assault, which comprised the throwing of the item at the attendant.

[11] The issue then, is what to do about the convictions. Both reporting agencies suggest that it is too soon for the application to be granted. In decisions of the Authority certain guidelines have been set down. These are not set in concrete, but they are helpful.

[12] The first decision is that of Valesha Anna Marx LLA 946-947/97 where the Authority said:

“We usually give added weight to any conviction relating to or involving the use or abuse of drugs or liquor disclosing two or more serious offences of a similar type and for assault or violence offences against any person. In addition we closely examine any pattern of offending disclosed by the type of convictions listed.”

[13] In G L Osborne LLA 2388/95 it was suggested that a period of five years conviction free would show that any particular candidate or applicant had learned the lessons, and shown that they had moved on. The five year period would relate to any serious conviction or any conviction relating to or involving the abuse of alcohol. On the other hand the Authority referred to the fact that isolated offending or single driving offences might only attract a conviction free period of two years.

[14] After considering this matter we take the view that a period of four years should elapse in the light of the pattern of offending which has developed. If Ms Paukofe is able to show that she had been without conviction for four years then clearly she is in a position to step up and assume the responsibility if not privilege of holding a General Manager’s Certificate. Unlike Osborne’s decision we believe the four years should run from the date of the offending.

[15] The last offending occurred on 12 May 2002. It will be seen that it should be until May 2006 before Ms Paukofe could look with confidence to making another application. On the other hand we accept that she has made a serious approach to this new career, and has the committed support of the manager of the business. We believe that no finding should be infinite. We suggest that she reapplies in approximately 12 months time.

[16] Over the following six months or so, she can be appointed as a temporary manager so that her performance levels can be monitored. If by May 2006, there have been no further problems, it may well be that the application will be granted by the Agency. Alternatively if there are concerns expressed by the authorities, the matter will have to come back before us.

[17] We therefore regretfully decline the application at this time.

DATED at WELLINGTON this 6th day of September 2004

Judge E W Unwin Mr J C Crookston
Chairman Member

Monique Paukofe.doc(afw)