Marnier v McMillen [2008] NZLLA 1376 (30 September 2008)

New Zealand Liquor Licensing Authority

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Marnier v McMillen [2008] NZLLA 1376 (30 September 2008)

Last Updated: 8 February 2010

Decision No. PH 1376/2008

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension of General Manager's Certificate number 049/GM/93/2006 issued to PETER BURTON McMILLEN

BETWEEN CAROLINE ANNE MARNER

(Police Officer of Wellington)

Applicant

AND PETER BURTON McMILLEN

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Ms J D Moorhead

HEARING at WELLINGTON on 2 September 2008

APPEARANCES

Sergeant C A Marner – NZ Police – applicant
Mr T Castle – for respondent
Mr R Putze – Wellington District Licensing Agency Inspector – to assist

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority is an application pursuant to s.135 of the Act for the suspension of a General Manager's Certificate issued to Peter Burton McMillen.

[2] Mr McMillen was granted his General Manager's Certificate in 2006. The application is brought by the Police and is based on the ground that Mr McMillen's conduct has been such as to show that he is not a suitable person to hold the certificate.

[3] The conduct complained of occurred on 24 June 2007. Because of the submissions made to us, (and including the fact that the incident was domestically based), we propose to make an order under s.107(5) of the Act prohibiting the publication in this decision of the details. Such an order will exclude the fact that at the time of the incident, Mr McMillen was intoxicated. We also intend to make a similar order in respect of the relevant licensed premises which are only peripherally involved at any event.

[4] As a result of the above incident an arrest was made and a charge was laid. The charge was taken to a status hearing in the District Court. Subsequently, Mr McMillen was discharged without conviction pursuant to s.106 of the Sentencing Act 2002.

[5] This effectively means that it was found that a conviction would be of a greater severity than the circumstances warranted. The circumstances themselves cannot be condoned or excused. What we are more interested in, is the fact that at the time of the incident, Mr McMillen had a drinking problem. He was using his General Manager's Certificate on a regular basis. The combination of his own personal drinking and the pressure that he had placed himself under, led him to behave in a manner that ultimately resulted in his ringing the Police. This call has been described as ‘a cry for help’.

[6] Apart from the indignity of the appearance before the District Court, Mr McMillen placed himself at the behest of his doctor who prescribed antabuse for a period of three months, taken on a daily basis. Subsequently Mr McMillen resolved to remove the immoderate use of alcohol from his life. To this date he has been able to establish that his binge drinking capacity is not at risk. Both he and the victim have clearly and candidly explained the steps that have been taken, and the resolutions that have been made, and the way that they have decided to put this matter behind them.

[7] It has not been an easy time for both of them over this last 15 months. The consequential appearance before the Authority has heightened the level of stress. We have heard at some length from Mr McMillen. We are grateful to his counsel for the preparation of the submission aimed at our exercising our discretion not to make an enforcement order.

[8] The Police perspective referred to the decision of Henry v Strange LLA 1632/96, regarding an application for cancellation of a General Manager's Certificate. It was stated:

"A serious question raised by this application is how off-duty conduct involving the consumption of alcohol should be weighed when considering the suitability of an individual to continue to hold a General Manager's Certificate.

In many occupations off-duty conduct is commonly ignored. An exception may arise when the conduct impacts upon work performance. Few trades or professions have a direct legislative link which requires that conduct - including out of hours activities, be considered under the quasi-disciplinary procedure of s.135 of the Act. Nevertheless, that burden is imposed by Parliament on licensees (under s.132) and managers under the Sale of Liquor Act 1989. Their conduct and suitability may be examined at any time if an application is brought before this Authority.

Section 135 provides a cancellation, or suspension of the Certificate for up to six months, may be imposed where on stated grounds a Police Officer or Licensing Inspector brings an application before the Authority."

[9] As the disciplinary body for the hospitality industry we are required to be consistent. Furthermore, we have had particular regard to s.4(2) which requires us to exercise any discretion in a manner that is most likely to promote the object of the Act.

[10] On the other hand, and after hearing from Mr McMillen, we are more than satisfied that he is well aware of the Act’s objective. He is equally aware of what happened on this occasion and the connection between that behaviour and the Act's objective. We are more than satisfied that he has learned the lessons that require to be learned and is able to apply that knowledge in a much more prosocial and proactive way in the future.

[11] In short we do not believe that the making of an order would in any way enhance the Act's objective. This is because we believe that the lessons have been learned to a significant degree. There is no criticism on the Police for bringing the application. This has been an unfortunate incident for all parties and there is no real winner. In summary, it is our view after hearing from the parties and from counsel, that little would be achieved by the imposition of a suspension order. The application is therefore declined.

DATED at WELLINGTON this 30th day of September 2008

Sara Cunningham
Secretary

PeterMcMillen.doc(jeh)

Peter McMillen.doc(aw)