Heke [2008] NZLLA 1116 (12 August 2008)

Last Updated: 28 January 2012

Decision No. PH 1116/2008

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by CASSANDRA MAIRE HEKE 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: Dr J Horn

HEARING at HASTINGS on 23 July 2008

APPEARANCES

Ms C M Heke – applicant
Mr J H Lovatt – Hastings District Licensing Agency Inspector – in opposition
Sergeant R M Gordon – NZ Police – to assist

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority is an application by Cassandra Maire Heke for a General Manager's Certificate. The application was filed with the District Licensing Agency on 3 March 2008. The application was accompanied by the Licence Controller Qualification and a positive reference from the “Clearview Estate Winery”.

[2] Ms Heke has been employed on a full time basis at the restaurant since November 2007. In addition she manages all the winery functions and front of house operations. There were other supporting references. We understand from the reporting Agencies that the restaurant itself is well run and there are no liquor abuse issues.

[3] Ms Heke was granted maternity leave in May 2008 and is anxious to return to work in August. When interviewed she showed a good understanding of the Act as well as her responsibilities while managing licensed premises. She has previously worked in restaurants in Auckland and in Australia.

[4] The reason that the application is before the Authority is that Ms Heke has eight relevant previous convictions. These include two for shoplifting, three for fraud, two involving drugs and one for driving with excess breath alcohol content.

[5] Many of the convictions could be described as historical. On 7 January 2005 (over three years ago), Ms Heke was convicted of driving with excessive breath alcohol content. The level on that occasion was 491 micrograms of alcohol per litre of breath. Ms Heke has advised that as a result of that conviction she gave up drinking for a period of 18 months.

[6] There were two events on 4 July 2005 when Ms Heke was living in Auckland. She was short of money. She took a wallet and used the card to obtain goods and services. The reparation which was ordered was $589.03.

[7] Ms Heke says that she has made a number of changes since that time. She believes that she is unlikely to appear again in a District Court. She has a permanent relationship and has recently become the mother of a child. She and her current partner are anxious to forge a lifestyle having moved from Auckland to Hawkes Bay in order to avoid other temptations and lead a much more proactive lifestyle.

[8] As was pointed out by the Inspector and the Police, the guideline decision of G L Osborne LLA 2388/95 applies. In that decision it was said:

"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."

[9] It could be said that each conviction is not necessarily regarded as a serious conviction although when the convictions are combined, the pattern of offending is a cause of some concern.

[10] There are a number of positive features about the application and Ms Heke impressed as being a person who could do well as the manager of licensed premises. A stand down period is normally suggested so that a person can show that they have learned from the experiences of the past and are able to apply that knowledge in a much more prosocial way. It adds credibility to the statement that is often made that the applicant has got over that particular period of their lives and is anxious to move on.

[11] We refer to a decision of the Horse and Trap Tavern Limited LLA PH 880-881/2005 in which it was said:

"We believe that raising the bar for the holders of General Managers' Certificates and keeping it at a certain height has the potential to bring about a reduction in the abuse of liquor nationwide. If certain otherwise meritorious applicants suffer in the process that may not be too high a price to pay in order to achieve this long term goal."

[12] As the reporting Agencies pointed out there is often a conflict in licensed premises between upholding the law and turning a blind eye to what could be happening. That is why self-imposed standards of responsibility are required.

[13] In the circumstances and after weighing up the competing factors, we believe that a three and a half-year, conviction free period from the date of the last offence, would be an appropriate timeline in this case. The undertaking given by Ms Heke is that she would only use her certificate at the “Clearview Estate Winery” to which she intends to return. That undertaking cannot last forever and an exemption could be granted by an Inspector or if necessary, by this Authority.

[14] The application will be adjourned for six months. This means that if there are no further reported adverse incidents then we would be prepared to grant the application on the papers in the New Year. We suggest that in the last three months of this adjourned period Ms Heke could be appointed as a temporary or acting manager provided the provisions of ss.128 or 129 of the Act have been complied with. If there are further adverse reports then either there will be a further public hearing or the application will be declined.

[15] In the meantime, the application is adjourned in the anticipation that without further adverse reports the application can be granted on the papers.

DATED at WELLINGTON this 12th day of August 2008

B M Holmes
Deputy Secretary

Cassandra Heke.doc(aw)