Hall and McGrath v Cunningham [2011] NZLLA 1197 (19 October 2011)

Last Updated: 30 November 2011

[2011] NZLLA PH 1197-1198

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 033/GM/5146/2010 issued to DANIEL HAMIORA RIGDEN CUNNINGHAM

BETWEEN TONIA ANNE HALL

(New Plymouth District Licensing Agency Inspector)

AND CHERYL JANE McGRATH

(Police Officer of New Plymouth)

Applicants

AND DANIEL HAMIORA RIGDEN CUNNINGHAM

Respondent

AND

IN THE MATTER of an application DANIEL HAMIORA RIGDEN CUNNINGHAM pursuant to s.123 of the Act for renewal of a General Manager's Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge J D Hole
Member: Dr J Horn

HEARING at NEW PLYMOUTH on 13 October 2011

APPEARANCES

Ms T A Hall – New Plymouth District Licensing Agency Inspector – applicant and in opposition to application for General Manager's Certificate
Mr D H R Cunningham – respondent and applicant for renewal of General Manager's Certificate

DECISION OF THE AUTHORITY

[1] There are two applications. The first is for the suspension or cancellation of General Manager's Certificate issued to Mr Cunningham. The second is for its renewal.

[2] The enforcement application alleges that the conduct of Mr Cunningham as manager is such as to show that he is not a suitable person to hold a General Manager's Certificate. In particular (as Mr Cunningham conceded) on 30 June 2011 he was convicted on two charges of Crimes Act assault and one charge of injuring with intent to injure. The applicants requested that the certificate be cancelled.

[3] The renewal application was opposed on the same grounds as are set out in the enforcement application.

[4] On 6 March 2011 Mr Cunningham had been to a party in a bar where he argued with an associate. He became angry and agitated and left the party. In Egmont Street three men made derogatory remarks to him. He fought these men. He left the area and walked into Kings Street where he encountered the three victims. One of the victims made a remark to him. Mr Cunningham punched the victim several times in the face whereupon the victim fell to the footpath. The defendant, wearing sneakers stomped once on the victim’s head. The victim became unconscious. An associate of the victim attempted to prevent Mr Cunningham continuing the assault. He was punched once on the right side of the jaw. A third victim then tackled Mr Cunningham. He was punched several times by Mr Cunningham.

[5] The victim of the injuring with intent charge was hospitalised. He received a deep cut under his right eye which required seven stitches and deep bruising to his face. One of the other victims received a bruised jaw and damage to his teeth. The third victim received bruising to his face.

[6] The offending was serious. It was fuelled by alcohol.

[7] In accordance with s.135(6) of the Act the Authority considers it desirable that an order be made. However, the Authority does not agree with the Inspector’s submission to the effect that the certificate should be cancelled and the application for its renewal refused. The Inspector considers that there should be two years free of offending before Mr Cunningham is able to obtain a new General Manager's Certificate.

[8] As was stated in Sheard [1996] NZAR 61 and confirmed in Schroeder v Police 10602, William Young J, HC Christchurch AP8/02, the relevance of the convictions in this context is to the issue as to whether Mr Cunningham will meet his or her obligations or responsibilities under the Act. In this regard, Mr Cunningham uses his General Manager's Certificate whilst working in a “Countdown Supermarket”. In evidence he undertook that for the next six months he would only use his General Manager's Certificate in the course of his employment with Progressive Enterprises in a supermarket or such other employment as is agreed to by the Inspector. Thus, in the short term there is no prospect of Mr Cunningham using his General Manager's Certificate in a place where is likely to abuse liquor and engage in the sort of behaviour that gave rise to the convictions.

[9] Holding a General Manager's Certificate is a privilege and that privilege was abused when the offending occurred. At that time it indicated an absence of suitability to hold a General Manager's Certificate. Nevertheless, Mr Cunningham has no other convictions and the offending must be treated as an aberration.

[10] Taking all these factors into account the Authority considers that the General Manager's Certificate issued to Mr Cunningham is suspended for two months commencing 1 November 2011.

[11] Mr Cunningham’s General Manager's Certificate is renewed for 13 months commencing 10 September 2011 in reliance on the undertaking set out earlier in this decision.

DATED at WELLINGTON this 19th day of October 2011

B M Holmes
Secretary

Daniel Cunningham.doc(aw)