Cooper-Wainohu, re [2005] NZLLA 459 (17 June 2005)

Last Updated: 18 April 2010

Decision No. PH 459/2005

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by AROHA SINA COOPER-WAINOHU pursuant to s.123 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 HAMILTON on 27 May 2005

APPEARANCES

Ms A S Cooper - Wainohu - applicant
Senior Constable N C McIntosh - NZ Police - in opposition
Mr J Kee - Waikato District Licensing Agency Inspector - to assist

ORAL DECISION OF THE AUTHORITY

[1] This is an application by Aroha Sina Cooper-Wainohu for the renewal of her General Manager’s Certificate. Ms Cooper-Wainohu was first granted a certificate on 17 December 1997. For the majority of the time she used the certificate to be the manager of the “Huntly RSA” and there has been no criticism of her work at that licensed premises.

[2] She however stopped work round about 2002 to commence a post graduate course in Business Management. The combined effects of the university lifestyle and certain issues resulted in her appearing three times in the District Courts in Huntly and Hamilton. When she made her application for the renewal of the General Manager’s Certificate these matters came to light and resulted not unnaturally in an adverse report from the Police.

[3] The facts disclosed that the first offence occurred on 3 August 2003. Ms Cooper-Wainohu had a breath alcohol level of 897 micrograms of alcohol per litre of breath. She was accordingly fined and disqualified.

[4] Approximately two months later on 24 October 2003 she was apprehended for a similar offence. The level on that occasion was 783 micrograms of alcohol per litre of breath and once again there was a fine and disqualification. The two charges were bad enough but they were aggravated with an offending on the same day for driving while disqualified for which a conviction was also entered in the Hamilton District Court and for which a fine and disqualification was imposed.

[5] There is no question but that the offending, bad as it was, has been sympathetically viewed by the Inspector and the Police. In a full report the Inspector has pointed out that both he and the Police are convinced that if the General Manager’s Certificate was renewed the reporting agencies or enforcement agencies would not have any problems with her performing in a responsible manner. Reference was made to the decision of G L Osborne LLA 2388/95 in which a stand down period of two years is recommended for isolated offending. The Inspector has taken the view that this was to a large extent isolated. He provided the metaphor of the fact that Ms Cooper-Wainohu had taken a corner too fast and derailed and it was a case of getting her back on her feet.

[6] Ms Cooper-Wainohu took some counselling. She said that this was to do with the fact that she had become involved in a university lifestyle and that her main ambition is to never re-offend again. She was fully aware of the implications behind the offending and apart from the financial consequences there have been others. Governed to a large extent by the provisions of s.126 of the Act, these provisions set out the criteria to which we must have regard. These criteria are Ms Cooper-Wainohu’s character and reputation, any convictions recorded against her since the certificate was last renewed, the manner in which she has managed the sale and supply of liquor pursuant to the licence with the aim of contributing to the reduction of liquor abuse and any other matters in the reports from the Inspector and the Police.

[7] There are no issues with her character and reputation or the way in which she has managed licensed premises. The issue relates to the convictions. Normally speaking, there would have been an application for the suspension of her General Manager’s Certificate except that these convictions only came to light when the application for renewal was made. We refer for example to a decision of Alastair Robert Lyon LLA PH 57/2003 it was said:

“In our view if managers are guilty of breaches of the drink driving provisions 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 the maximum term of six months. In the majority of cases such a result will be seen by the Authority as a desirable step towards the promotion of the object of the Act.”

[8] In the light of the positive comments both from the Police and the District Licensing Agency Inspector we think it would be unreasonable to refuse the application outright. Although a suspension period of up to two months in our view would have been appropriate. Ms Cooper-Wainohu runs a catering business. She has some 18 months to run before she finishes her post graduate diploma.

[9] We think that the next few months should be monitored and in all the circumstances we have decided to renew the General Manager’s Certificate for a period of 18 months only. This means that it will fall due for renewal again on 17 June 2006 in just over 12 months time. This period of time should be regarded by the applicant as a further probationary period during which time her character and the use of her General Manager’s Certificate and the operation of any licensed premises will be closely monitored. This probationary period will we hope, serve as a useful reminder to the applicant and to the holders of other General Manager’s Certificates that the holding of a General Manager’s Certificate is a privilege and that the object of the Act should be maintained at all times.

[10] Accordingly the General Manager’s Certificate is renewed for a limited period.

DATED at WELLINGTON this 17th day of June 2005

Judge E W Unwin Mr J C Crookston
Chairman Member

Aroha Cooper-Wainohu.doc(aw)