Thornley and Sheehan v Pludthura [2009] NZLLA 949 (18 August 2009)

Last Updated: 26 January 2012

Decision No. PH 949/2009 – PH 950/2009

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application pursuant to s.132 of the Act for suspension of off-licence number 006/OFF/98/2006 issued to ANEK PLUDTHURA in respect of premises situated at Shop 8, Kelston Shopping Centre, corner of West Coast Road and Great North Road, Kelston, Waitakere City, known as “Wine Villa”

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension of General Manager’s Certificate number GM 006/46/2000 issued to ANEK PLUDTHURA

BETWEEN JOHN THORNLEY
(Police Officer of Henderson)

AND JASON PAUL SHEEHAN
(Waitakere District Licensing Agency Inspector)

Applicants

AND ANEK PLUDTHURA

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Deputy Chairman: District Court Judge D J R Holderness
Member: Ms J D Moorhead

HEARING at AUCKLAND on 9 July 2009

APPEARANCES

Mr J P Sheehan – Waitakere District Licensing Agency Inspector – applicant
Constable J Thornley – NZ Police applicant
Mr A Pludthura – respondent

ORAL DECISION OF THE AUTHORITY

[1] The Authority is required to determine two applications – an application pursuant to s.132 of the Act for suspension of off-licence number 006/OFF/98/2006, issued to Anel Pludthura in respect of premises situated at Shop 8, Kelston Shopping Centre, corner of West Coast Road and Great North Road, Kelston, Waitakere City, known as “Wine Villa”, and an application pursuant to s.135 of the Act for suspension of Mr Pludthura’s General Manager’s Certificate number GM 006/46/2000. The applications arise out of the same transaction that occurred during the course of a controlled purchase operation conducted on 16 January 2009.

[2] The applications are brought on the grounds of a breach of s.155 of the Act. That section creates an offence for any licensee or manager to sell or supply liquor to minors. A further ground is the unauthorised sale or supply by the licensee and/or manager, being a breach of s.165 of the Act.

[3] At about 5.10 pm on 16 January last a volunteer, aged just over 17 at the time, entered the premises known as “Wine Villa”. The volunteer is still at school this year, although at the time of this incident it was school holiday time. The volunteer was instructed by Constable Thornley to enter the premises and, if asked, to produce his driver’s licence by way of identification. He was provided with a $20 note by the Inspector, Mr J P Sheehan.

[4] The volunteer went into the premises. He selected a bottle of Riccadonna sparkling wine and went to the counter where a male staff member served him. At no point was the volunteer asked for any form of identification and he was sold the wine. There is no dispute that this was liquor in terms of the Act.

[5] The allegations made in support of the applications are not disputed by Mr Pludthura. He has appeared this morning. He has declined the opportunity to give evidence and made it clear to the Authority that he does not in any way challenge any of the allegations or any aspect of either the evidence of the volunteer or Constable Thornley.

[6] The Authority observes that during this controlled purchase operation a total of 18 premises were visited. Liquor was sold to the volunteer at four of those 18 premises, including “Wine Villa”.

[7] The Authority is satisfied on the unchallenged evidence of the Constable and the volunteer that the grounds relied upon in respect of these applications have been established. Furthermore the Authority is satisfied that it is desirable to make orders in respect of these applications, particularly as there has been a previous breach resulting in enforcement action and suspensions.

[8] The previous matter was before the Authority on 24 July 2007. That also arose from a controlled purchase operation. The upshot of the proceedings considered by the Authority in July 2007 was a suspension of the off-licence, which is held by Anek Pludthura, for a period of two days, and suspension of his General Manager’s Certificate for a period of one month.

[9] The Authority takes into account the respondent’s co-operation on this occasion. The Authority may have been assisted by some evidence from the respondent however, there is no doubt that he has co-operated, in particular in accepting the allegations relied upon by the applicant. This has meant that although he has attended the hearing this morning, the volunteer who is still aged 17 and is at school has not been required to give evidence.

[10] Having weighed up the various matters that the Authority considers should be taken into account and having regard in particular to the fact that there was earlier enforcement action in 2007, the Authority has reached the view that the appropriate suspension in respect of the off-licence is suspension for a period of four days and that the appropriate suspension of the General Manager’s Certificate is for a period of six weeks.

[11] We heard from Mr Pludthura as to whether any particular commencement date would be appropriate. We think that because these applications relate to a sale on a Friday that in relation to the off-licence the suspension period should include a Friday.

[12] The Authority orders that the off-licence be suspended for four days commencing at 9.00 am on Tuesday 15 September 2009 and that the General Manager’s Certificate be suspended for six weeks from Tuesday 15 September 2009.

DATED at WELLINGTON this 18th day of August 2009

B M Holmes
Deputy Secretary

Anek Pludthura.doc(aw)