Singh v Kopyl [2009] NZLLA 553 (28 May 2009)

Last Updated: 2 October 2010

Decision No. PH 553/2009

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 or cancellation of General Manager’s Certificate number 009/GM/285/2006 issued to PARAMJIT SINGH

BETWEEN TETYANA KOPYL

(Police Officer of Manukau)

Applicant

AND PARAMJIT SINGH

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at PUKEKOHE on 20 May 2009

APPEARANCES

Sergeant G J Campbell – NZ Police – applicant
Mr R A McKelvin – for respondent
Mr T N Long – Franklin District Licensing Agency Inspector – to assist

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority is an application brought by the Police for the suspension or cancellation of a General Manager’s Certificate issued to Paramjit Singh. The application was filed on the ground that Mr Singh's conduct had been such as to show that he is not a suitable person to hold the certificate.

[2] The basic facts on which the application is based are that on 2 July 2008 at about 10.20 pm, the Police received a public complaint about a vehicle that was being driven erratically in Karaka. The Police located the vehicle on Linwood Road. Mr Paramjit Singh was the driver. According to him he became aware that he was unable to control his vehicle properly and pulled over to the side of the road and waited. Breath test procedures were carried out and Mr Singh's breath was found to contain 1,070 micrograms of alcohol per litre of breath, nearly three times the allowable limit.

[3] The offending and the abuse of liquor were aggravated by the fact that there have been two similar occasions on which Mr Singh has been taken before the District Court. The first occasion occurred in October 1995 when Mr Singh was convicted of driving with excess breath alcohol. His level was 762 micrograms of alcohol per litre of breath. On that occasion he was convicted and fined and disqualified from driving. The second occasion occurred in 2000. Mr Singh was convicted and fined and disqualified from driving. His level was 875 micrograms of alcohol per litre of breath.

[4] In respect of the most recent offence Mr Singh was ordered to carry out 120 hours of community work. He was sentenced to supervision for a period of nine months with special conditions relating to alcohol counselling. He was disqualified from driving for a year and one day. We have not been particularly well served in relation to what happened as part of the supervision. There is no report. According to Mr Singh he only attended one meeting to deal with what is clearly a significant involvement with liquor abuse.

[5] Mr Singh was granted his certificate on 6 September 2006. It was about that time that he took over a small off-licensed premises. He is the owner of the business and one of the duty managers.

[6] The application needs to be viewed against the historical licensing background concerning managers. When Parliament passed the Sale of Liquor Amendment Act 1999, it amended s.115(1) of the Act to emphasise the fact that a manager must be on duty at all times when liquor is sold or supplied to the public. Furthermore it required that managers would be responsible for ensuring that the premises complied not only with the Act but also with the conditions of the governing licence.

[7] In a decision known as Martin Ferguson v Alister Robert Lyon LLA PH 57/2003 we were presented with an application for the suspension or cancellation of a manager's certificate. On that occasion there had also been three convictions for driving with excess breath alcohol content. The list showed that Mr Lyon had been convicted in 1989, 1999 and 2002. On all those three occasions his levels were reasonably moderate and nothing like the levels achieved by Mr Singh. In that decision we said:

“New Zealand's drinking culture has become defined by many factors and social changes. Its manifestation is often seen in binge drinking or drinking harmfully. If the object of the Sale of Liquor Act is to be taken seriously then eventually standards of good drinking behaviour will have to be set. Because people are inclined to be tolerant of alcohol abuse then the focus must inevitably fall on the law. If the law becomes tolerant towards such behaviour then the object of the Act will lose credibility. If managers of licensed premises are shown to lack discipline, then why should patrons take the issue seriously. The behaviour currently exhibited by younger drinkers is but a symptom of the malaise.

In summary we think it is time to take the object of the Act seriously. It is because of the persuasive arguments and the reference to Schroeder's case (supra) that we decided to reserve this decision. We had hoped that we might be able to lay down guidelines for the future. On reviewing a number of similar applications and decisions, we find that because individual circumstances differ so greatly, such guidelines are not possible."

[8] Mr Lyon had his certificate suspended for six weeks.

[9] Since that time there has been a further amendment to s.115 of the Act. On 1 April 2006 managers not only became responsible for compliance with the Act but also its enforcement. In addition they became responsible for the conduct of the premises with the aim of contributing to the reduction of liquor abuse. The amendment placed further responsibility on the shoulders of managers.

[10] In the training undertaken by an applicant for a manager’s certificate, the person is advised that the holding of a certificate is a privilege. He or she should be advised that the expectations are that those responsible for the sale and supply of liquor will have standards generally higher than those of the average member of the public.

[11] Against that background Mr Singh has sought legal advice. His counsel has stated that Mr Singh is 47 years of age and is married with two children. He has completed his community service. He acknowledges his offending and is apologetic for that. Mr McKelvin asked for a moderate suspension.

[12] It has to be said that because of the level of alcohol in Mr Singh's breath we considered cancellation of the certificate. Times have changed since the Lyon decision. Now more than ever it is important that managers appreciate the privilege of having a certificate. It seems to us that Mr Singh has some way to go before he realises the harm that he is causing himself and the potential harm that he is causing other people. He is clearly unsuitable to hold a certificate at this time.

[13] We have decided not to cancel the certificate because we think that would be an unreasonable response given that the first two convictions occurred prior to his obtaining a certificate. When he obtained his certificate those convictions were taken into account. He has no doubt been advised by counsel that if he commits another offence of this nature then he is likely to end up in prison. We regard his behaviour and conduct as such as to show a lack of suitability. A suspension of the certificate is most appropriate.

[14] In all the circumstances and taking into account what has been said on Mr Singh's behalf, General Manager’s Certificate number 009/GM/285/2006, issued to Paramjit Singh, is suspended for 12 weeks, commencing on Monday 29 June 2009.

DATED at WELLINGTON this 28th day of May 2009

B M Holmes
Deputy Secretary

Paramjit Singh.doc(aw)