Smith-Bull, re [2009] NZLLA 246 (18 March 2009)

New Zealand Liquor Licensing Authority

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Smith-Bull, re [2009] NZLLA 246 (18 March 2009)

Last Updated: 6 March 2010

Decision No. PH 246/2009

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by SHANE BRIAN SMITH-BULL 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: Mr P M McHaffie

HEARING at HAMILTON on 3 March 2009

APPEARANCES

Mr S B Smith-Bull – applicant
Sergeant J R Dalziell-Kernohan – NZ Police – in opposition
Mr T Van Der Heijden – Hamilton District Licensing Agency Inspector – to assist

ORAL DECISION OF THE AUTHORITY

[1] This is an application by Shane Brian Smith-Bull for a General Manager’s Certificate. Mr Smith-Bull is 21 years of age turning 22 this coming September.

[2] He filed his application for a certificate on 4 September last year. The application was supported by the Licence Controller Qualification and a supportive reference from the manager of a bottle store in Te Rapa. That reference indicated that Mr Smith-Bull had commenced working in a full time capacity in June 2008. He had in fact worked in the business the previous year, and left on his own accord.

[3] It was the view of the manager of the bottle store, that Mr Smith-Bull had matured considerably, and impressed with his enthusiasm and a willingness to learn the requirements of the Act.

[4] Mr Smith-Bull disclosed convictions which involved violence. It was those convictions that have resulted in adverse reports being received. The first incident occurred in May 2005 (nearly four years ago). Mr Smith-Bull was 17 or 18 at the time. He had been drinking. There was a disturbance in the neighbourhood as a result of which Mr Smith-Bull was confronted by a nearby resident. He acknowledged that he lost the plot and threatening the person as well as punching her letterbox causing damage. He appeared before the Huntly District Court on charges of wilful damage and threatening behaviour likely to cause violence. He was ordered to carry out 40 hours community work.

[5] Mr Smith-Bull compounded those offences on 24 March 2006. He had been drinking throughout the day and was intoxicated. He took a short cut and was confronted by the owner of the property. There was an altercation and Mr Smith-Bull pushed the victim in the chest with sufficient force to knock him to the ground. Mr Smith-Bull was charged with assault. He came before the District Court on that charge and was fined $750 with costs.

[6] Mr Smith-Bull stated that he was not the same person any longer. He is now the father of two children and has a partner. He stated that he had little time (and probably money), to misbehave in such an antisocial way. He said he used to drink six or seven jugs at a time. However, in order to control his behaviour he stopped drinking in that way. He gave evidence that currently, he is lucky if he manages to consume up to two or three stubbies with friends.

[7] Mr Smith-Bull made a good impression in the witness box. He clearly recognised his own behaviour for what it was. Furthermore, he has been a temporary manager of the business on a reasonably regular basis since the application was filed.

[8] The convictions are clearly relevant in the decision-making process. We note a guideline decision of G L Osborne LLA 2388/95 in which 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] On the other hand it was suggested:

“Less serious convictions are also weighed. By way of example is an isolated excess breath or blood alcohol conviction or a single driving offence disclosing no pattern of offending. Nevertheless all convictions must be weighed as required by s.121(1)(b). In these and similar cases we frequently indicate that a minimum of two years from the date of conviction may result in subsequent favourable consideration providing suitable reports from both the Police and a Licensing Inspector are received.”

[10] The issue is to settle on a period of time (often known as a stand-down period). If a person is able to survive a nominated term without being apprehended, or without incurring adverse reports, then he is in a much better position to demonstrate that he has learned valuable lessons from the experiences of the past. He can show that he or she is more likely to apply such experience in a more prosocial way.

[11] It is now nearly three years since the last event. When we combine that time with Mr Smith-Bull's stability as a parent and family person, we take the view that it is probable that he has learned the lessons from his previous behaviour. In those circumstances, particularly taking into account that he has been a temporary manager of these premises, we think the time has come for him to step up in terms of responsibility. In the final analysis, we are satisfied that if granted a certificate, Mr Smith-Bull will uphold the law, and in particular the Act and its objective.

[12] Accordingly the application is granted.

DATED at WELLINGTON this 18th day of March 2009

B M Holmes
Deputy Secretary

Shane Smith-Bull.doc(aw)