Chhun [2010] NZLLA 579 (14 May 2010)

Last Updated: 20 May 2010

[2010] NZLLA PH 579

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by KIMSEK CHHUN pursuant to s.118 of the Act for a General Manager's Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

Quorum: Ms J D Moorhead
Dr J Horn

HEARING at WELLINGTON on 29 April 2010

APPEARANCES

Mr K Chhun - applicant
Sergeant J R Thurston - NZ Police - in opposition
Mr R S Putze - Wellington District Licensing Agency Inspector - to assist

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority for determination is an application by Kimsek Chhun pursuant to s.118 of the Act for a General Manager's Certificate. The application was received by the Wellington District Licensing Agency on 26 November 2009. The application was supported by a copy of the required Licence Controller Qualification as well as a reference from Mr Chhun’s place of employment “Fix Cuba Street”.

[2] The application attracted opposition from the Police as a result of their vetting checks confirming that Mr Chhun had two previous convictions. It is noted that both of these convictions were disclosed by Mr Chhun on the application form at the time he made the application.

[3] The evidence is that in January 2008 Mr Chhun was convicted in the Tauranga District Court for an offence which took place on 1 January 2008 for breach of a local liquor ban. We understand that this matter was dealt with by way of a guilty letter.

[4] The second offence took place on 4 April 2008. Mr Chhun was convicted and discharged in the Wellington District Court on 26 May 2008 for being an unlicensed driver failing to comply with a prohibition order.

[5] Mr Chhun has appeared at the hearing and confirmed that he is still employed at “Fix Cuba Street” (previously known as “Starmart”). He has been employed by this organisation for some three and a half years. He initially worked at “Fix Cuba Street” and then at “Fix The Terrace”. We understand that he is planning to move shortly to “Fix” in Courtenay Place. All of the abovementioned premises currently hold off-licences.

[6] Mr Chhun has been candid in his responses to the Authority about the two convictions. He was also fully aware of the object of the Sale of Liquor Act and his responsibilities under the Act. The matters that we must have regard to in determining the application are set out in s.121 of the Act. The only matter at issue is the convictions recorded against the applicant.

[7] The relevant guideline decision in regard to convictions is that of G L Osborne NZLLA 2388/95. In that decision it is stated:

“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.”

“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.”

[8] In the current situation while Mr Chhun has two convictions, both are for relatively minor matters and both occurred in early 2008. We note in particular that although Mr Chhun was convicted he was discharged on the second offence.

[9] In all the circumstances and having heard from Mr Chhun, we are satisfied that the time has now come for Mr Chhun to step up in the industry and we now grant the application for the General Manager's Certificate. The certificate may issue immediately.

DATED at WELLINGTON this 14TH day of May 2010

B M Holmes
Deputy Secretary

Kimsek Chhun.doc(aw)