Ponga - Davis, re [2006] NZLLA 597 (14 August 2006)

Last Updated: 3 October 2010

Decision No. PH 597/2006

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by SELWYN IVANA PONGA-DAVIS 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: Ms P A Ballard

HEARING at WANGANUI on 27 July 2006

APPEARANCES

Mr S I Ponga-Davis – applicant
Sergeant T Patterson – NZ Police – in opposition
Mr J D Bonner – Wanganui District Licensing Agency Inspector – in opposition

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority is an application by Selwyn Ivana Ponga-Davis for a General Manager’s Certificate.

[2] The criteria which we are required to consider when making a decision are set out in s.121 of the Act. To a large extent Mr Ponga-Davis fulfils those criteria. He is a mature man being some 38 years of age. Subject to the matter yet to be mentioned, he has had an otherwise blameless career. He has been employed at licensed premises known as the “Bull and Gate Tavern” since April 2005.

[3] He started working there as head of security. During the time that he was there he has become involved in assisting with staff selection, training, and safety measures in relation to security. Eventually he has moved on into the supplying side of the hospitality industry, and in May of this year, he commenced working in the bar.

[4] He obviously has impressed his employer who has written a supportive reference to us in which he has stated that he has a good attitude towards his responsibility to reduce liquor abuse. He is hard working, straight talking, and he is a person to whom the owner would have confidence in trusting the sole running of the bar.

[5] To a large extent that attitude and ability is reflected in the report from the District Licensing Agency Inspector who records that he has an acceptable knowledge of the Act. He has his heart in the right place and is keen to do what is right. In the long run the Inspector believes that Mr Ponga-Davis would be an asset to the hospitality industry.

[6] Mr Ponga-Davis has received the relevant training and is the holder of a Licence Controller Qualification. He has apparently spent some time in the last three or four months working as a temporary manager.

[7] Both the Police and the District Licensing Agency Inspector have referred to the fact that there was an incident in Mr Ponga-Davis’ life which was quite serious, which resulted in two convictions, and which needs to be taken into account.

[8] Mr Ponga-Davis has set out in some depth why the offending was out of character for him. Without going into details, he was faced with four life crises in one moment as it were. He took it upon himself to become involved with a firearm and to drive in a dangerous manner. He was convicted of those two charges. The firearm was not loaded but nevertheless the incident was very worrying for all concerned. As Mr Ponga-Davis has mentioned he thought that the Police and the presiding Judge were lenient in administering the consequences of what happened to him, and he was grateful for their compassion and understanding.

[9] In the event he was sentenced to supervision for a period of nine months. He was disqualified from driving. He has completed the period of supervision and in fact made a major change to his own life and lifestyle to the extent that he now has the primary responsibility of two children.

[10] What he is asking for is the opportunity to step up in the hospitality industry and assume the privilege of being the holder of a General Manager’s Certificate. In his report, Mr Bonner has quite carefully set out how such convictions should be viewed. As he submitted, the issue is whether or not the Authority should depart from its normal guidelines which are in place as part of a policy to keep up the standards of those entrusted with the sale of liquor.

[11] The guideline decision is known as G L Osborne LLA 2388/95 in which a policy was suggested along these lines:

"Without fettering ourselves in this or other applications, it may be helpful if we indicate that 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."

[12] In other words in terms of establishing the suitability of a candidate we will look at the nature of the convictions. If they are serious, we will say to the applicant, that he or she is required to show that the incident is isolated, and that the lessons have been learned. We will ask that if the applicant is in a position to move on, that he or she can show that there has been no similar or other offending for a period of five years. The question is whether a leopard can change its spots? We have found in our own experience that many people do mature, they do move on, and they do manage to put their past behind them.

[13] In this case Mr Ponga-Davis is asking for a much reduced period of time. He has stated: “I am mature, the offending was isolated, there were very strong mitigating circumstances. I have paid my penalty and moved on and I would like for those matters to be taken into account”.

[14] In the end the ultimate decision is a balancing exercise. We propose to deal with the matter in a way that we believe is appropriate. We take into account what has been said by all the parties and we are grateful to them for their respective submissions.

[15] We think that in these circumstances it would be unreasonable if not unfair of us to decline the application at this time, although we accept that such an outcome may have been the expectation of the reporting agencies given the nature of the offending.

[16] We believe that Mr Ponga-Davis with his submissions and his support has done enough to enable us to proceed along these lines. We are not prepared to grant the application at this time. In other words the granting of a General Manager's Certificate in this case will be a process rather than an event.

[17] Our decision is to adjourn this application for 12 months which is the maximum of time that we are prepared to adjourn any application. During the next 12 months we expect that Mr Ponga-Davis can be appointed as a temporary manager provided the provisions of s.128 of the Act have been complied with.

[18] He will be given therefore an opportunity (which could be seen as the probationary period) to prove himself, and to prove that his words can be transported into actions. It is accepted that Mr Ponga-Davis is managing one of the busier bars in the area, and a bar which does not have a particularly good record in terms of the Police Alco-link project.

[19] If at the end of twelve months, there are no further concerns, and Mr Ponga-Davis has been able to continue with the achievements that he started on, we propose to grant the application then on the papers. That will be a period of some two and a half years since the date of the offending which is not as long as the period suggested. However, in view of the positive aspects of the application, we believe the period is long enough to show that Mr Ponga-Davis will be suitable to hold a certificate.

[20] On the other hand if adverse matters are raised over the next 12 months then a further public hearing will be called or the application will be declined.

[21] The application is adjourned accordingly.

DATED at WELLINGTON this 14th day of August 2006

Judge E W Unwin Ms P A Ballard
Chairman Member

Selwyn Ponga-Davis.doc(aw)