McKinnon, re [2008] NZLLA 55 (28 January 2008)

Last Updated: 17 February 2010

Decision No. PH 55/2008

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by TREVOR MELVIN MCKINNON 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 WELLINGTON on 23 January 2008

APPEARANCES

Mr T M McKinnon – applicant
Sergeant C A Marner – NZ Police – in opposition
Mr R S Putze – Wellington District Licensing Agency Inspector – to assist

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority is an application by Trevor Melvin McKinnon for a General Manager's Certificate.

[2] The criteria which is required to be taken into account by the Authority in considering this type of application are set out in s.121 of the Act as follows:

(a) The character and reputation of the applicant:

(b) Any convictions recorded against the applicant:

(c) Any experience, in particular recent experience, that the applicant has had in managing any premises or conveyance in respect of which a licence was in force:

(d) Any relevant training, in particular recent training, that the applicant has undertaken and evidence the applicant holds the prescribed qualification required under section 117A:

(e) Any matters dealt with in any report made under section 119.

[3] Mr McKinnon has completed the relevant training and is the holder of the Licence Controller Qualification. He has experience in controlling any conveyance in respect of which a licence is in force. Mr McKinnon has been the skipper of a ferry since October 2006. He is regarded by his employer as an extremely competent skipper who has the full respect of both the travelling public and his crew.

[4] The skipper of any ferry is required to be responsible for the safety and comfort of the passengers and the crew, in the same way that the manager of licensed premises is required to be responsible for the safety of the patrons.

[5] When he filed his application with the District Licensing Agency in October last year, Mr McKinnon was asked whether he had any convictions and he said that he did. He made reference to an assault in 1996 for which he had received a sentence of imprisonment for four months.

[6] The Police discovered that there were other relevant convictions. Mr McKinnon was questioned as to why he had not disclosed all his convictions. He said both to the Police and in evidence that he had come to the opinion, (wrongly), that a conviction was only incurred where a person was sentenced to imprisonment. We are prepared to accept his explanation. We do not believe that the failure to disclose the other convictions was intentional and aimed at misleading either the Agency or the Authority.

[7] The facts show that Mr McKinnon has four convictions all relating to domestic violence. On 8 August 1997 Mr McKinnon was convicted of assaulting a female and was sentenced to imprisonment for four months. In 2000 he was convicted for contravening a protection order. At the same time there was an allegation of assault on a female resulting in a conviction. Mr McKinnon denied there was violence and said that there were loud arguments. He was sentenced to supervision and was ordered to undertake counselling as directed.

[8] On 13 December 2006 Mr McKinnon was at home. According to the summary of facts Mr McKinnon had been drinking at a bar and was said to be intoxicated. He became angry and yelled abuse at his wife. His wife then went to a bathroom and Mr McKinnon kicked the door open. Their daughters were woken. While there was distraction the victim escaped from the house. In another incident the Police were called. No conviction followed. Mr McKinnon says that he was having difficulty with a son-in-law.

[9] Mr McKinnon has said that he has come a long way since the incidents. He believed that he now has a position of responsibility, and is working very hard at both this job and doing contract work with other vessels. He believes that his relationship is stable. He and his wife have grandchildren and he says that the holding of a General Manager's Certificate would help him with his current employment as well as providing security for that employment. He says that the lessons have been learned.

[10] From our perspective that there has been a pattern of offending. We regard a pattern of offending rather more seriously than an isolated incident. It is true that Mr McKinnon has had some counselling for these matters. We do not believe that he has been able to establish that he has reached a stage where we could be confident that the previous offending would not be repeated.

[11] We believe that this application should be dealt with by way of a process rather than an event. It is too soon for any such application to be granted given the responsibility that goes with the holding of a certificate. On the other hand we are not prepared to decline the matter at this stage, even though we were thinking of a period of approximately three conviction-free years following the last time that Mr McKinnon was in trouble leading to a Court appearance.

[12] A trouble-free period of time is necessary for anybody to show that they have learned from the experiences of the past, and are able to apply that learning in a proactive way in terms of their current vocation or employment.

[13] We intend to proceed on the basis that this matter will be adjourned and will be rescheduled for a further hearing in January 2009. At that hearing we would like to hear from Mr McKinnon again as to what steps he has taken over the intervening period to address what has happened in the past, and effectively to show whether he has stability in his life. It may be that from time to time over the next 12 months Mr McKinnon is appointed as a temporary manager or acting manager of the vessel provided the provisions of s.128 and/or s.129 of the Act have been complied with.

[14] We would also like to hear about those times when he has been a temporary manager and how he has managed to demonstrate a sense of responsibility while ensuring that customers, who take advantage of the bar, are kept safe. After hearing from Mr McKinnon again in 12 months time, it may well be that we will be prepared to grant the application at that time. On the other hand there may be other incidents or issues that we need to hear about. There is the possibility that the matter could be further adjourned or declined.

[15] The application will be adjourned on the terms referred to. There will be a further hearing in 12 months. We leave open the possibility of temporary appointments being made from time to time should circumstances warrant it.

DATED at WELLINGTON this 28th day of January 2008

B M Holmes
Deputy Secretary

Trevor McKinnon.doc(aw)