Patel v Commissioner of Police

[2012] NZHC 885

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-7257 [2012] NZHC 885

IN THE MATTER OF     ss 138 and 147A of the Sale of Liquor Act

1989

AND

IN THE MATTER OF     an appeal by Tanmay Rambhai Patel

against a decision cancelling the appellant's general manager's certificate

BETWEEN  TANMAY RAMBHAI PATEL Appellant

ANDTHE COMMISSIONER OF POLICE THE AUCKLAND DISTRICT LICENSING AGENCY

Defendants

Hearing:         2 May 2012

Counsel:         J Wiles for the Appellant

J Jelas for the Respondents

Judgment:      2 May 2012

(ORAL) JUDGMENT OF WOODHOUSE J

Counsel / Solicitors:

Mr J Wiles, Barrister, Auckland

Mr S R Anderson (instructing solicitor for the appellant), Solicitor, Auckland

Ms J Jelas, Meredith Connell, Office of the Crown Solicitor, Auckland

PATEL V THE COMMISSIONER OF POLICE HC AK CIV-2011-404-7257 [2 May 2012]

[1]      The appellant, Mr Patel, had a general manager’s certificate under the Sale of Liquor Act 1989 (the Act).  The licence was cancelled on 2 November 2011 by the Liquor Licensing Authority for two breaches of the Act.  The breaches were sales to minors.    Mr Patel  now appeals  against  the cancellation  of the certificate.   The breaches were not disputed before the Authority.

Facts

[2]      n 26 February 2011 Police conducted two controlled purchase operations at an off-licence liquor store which at that time was being managed by Mr Patel.  At around 11:00  am, on  instructions from Police,  a 15  year old  youth  entered the premises and was able to purchase alcohol.  Mr Patel did not ask the youth for his age, date of birth or any other identification.   A police officer spoke to Mr Patel immediately following that incident.  Mr Patel said to the police officer that he was not concentrating and that he was sorry for not asking for identification.  The further controlled purchase occurred at about 11:40 am.   A 17 year old youth purchased alcohol without Mr Patel’s asking for any of the necessary particulars.  Immediately following the second purchase Mr Patel said to a police officer:

But you just checked me 10 minutes ago.  The police officer was here and told me I sold to the boy.  How come you checked me twice?

[3]      Photographs of the youths are attached to the submissions for the respondent on this appeal.  In response to a submission from Mr Wiles, on behalf of Mr Patel, I acknowledge that these young men possibly look older than their actual age, but I do not regard that as providing any excuse or providing some form of mitigation of any consequence.

The Authority’s decision

[4]      The Authority dealt with an application for suspension or cancellation of the licence, as well as the application against Mr Patel for suspension or cancellation of his certificate.   Mr Patel is not the licensee and he is not a  shareholder of the licensee.  He is a nephew of one of the shareholders of the licensee.

[5]      The Authority referred to facts relating to the offences by the licensee as well as those relating to the offences by Mr Patel, dealt with the application against the licensee, and then said in respect of Mr Patel:

[26]     As previously indicated in this decision, the conduct of Mr Patel in respect of these two incidents indicates that he is totally unsuitable to hold a General Manager’s Certificate.   To suspend his certificate would invite a repetition of sales by him to young persons.  If, in the future, he is to be put in the position of acting as a duty manager then he requires significantly more education and training.   This cannot be achieved in the context of a suspension.  Cancellation of his certificate is the only option.

[6]      The previous discussion referred to is principally that contained in [18] as follows:

[18]      In   addition,   Mr   Patel   displays   to   the   Authority   inadequate appreciation of his statutory responsibilities.  He plainly had no idea whom he should ask for identification and when.  Indeed, the fact that within 40 minutes on 26 February 2011 he made sales to two underaged boys speaks for itself.  The fact that he did not deny informing Constable Kopyl after the second  occasion  “You  just  checked  me  ten  minutes  ago”  is  a  further indication that on the second occasion he deemed it safe to make the sale without seeking identification.  These facts indicate that Mr Patel was totally unsuitable to act as a duty manager of the premises and this must have been known to the licensee.

Discussion

[7]      Ms Jelas, for the respondents, has responsibly drawn to my attention the fact that there was an error by the Authority in its decision.   In this regard s 135(3) is relevant.  It provides:

(3)      The grounds on which an application for an order under this section may be made are as follows:

(a)      That  the  manager  has  failed  to  conduct  any  licensed premises in a proper manner:

(b)      That the conduct of the manager is such as to show that he or she is not a suitable person to hold the certificate.

[8]      The Authority’s decision was made pursuant to s 135(3)(b).   However, the application was expressly made pursuant to s 135(3)(a). There was no amendment in the course of the hearing.   As a consequence Ms Jelas submitted that the appeal should be allowed to the extent that there was this jurisdictional error.  I am satisfied

that she is correct in that regard.   I also agree with the further submission for the respondents that the appropriate course is for this Court to determine the matter afresh pursuant to s 138(7) of the Act.

[9]      In  my  opinion  the  appropriate  penalty  in  this  case  is  suspension,  not cancellation.  In coming to that conclusion I have given due weight to the matters referred to by the Authority, and in particular at [18] of the decision.   Weighing against that, and matters not referred to or given any prominence in the Authority’s decision, are the following:

(a)      Mr Patel probably was at some disadvantage at this hearing because he was represented by the agent who also represented the licensee.  It does appear that relevant mitigating factors were not presented to the Authority.   In this regard I also note that in the brief of evidence prepared for Mr Patel he states:

The sole responsibility for this rests on me and me alone.  I am prepared to take whatever penalty [may be] imposed on me.

(b)Some of the facts relating to the offending by the licensee tend to indicate that overall supervision by the licensee was not adequate.

(c)      Mr Patel admitted the offending.   He was entitled to reasonably substantial credit for that.  In this regard I refer to a decision of the Authority in Cox and Long.[1]

[1] Cox and Long v Jay H. Company Ltd and Patel [2009] NZLLA 1239 at [10].

(d)To an extent at least there is relevant disparity between the result for Mr Patel (in respect of whom there had been no previous incidents) and for the licensee who had offended on two previous occasions

unrelated to Mr Patel. The off-licence was suspended for 30 days.

(e)      Mr Patel’s personal circumstances do not appear to have been drawn to the attention of the Authority. They are now before me and they are relevant as mitigating factors.

(f)      Mr Patel was employed as a certificated manager for 16 months prior to this offending without any offences.   There was a further nine months from the offending to the hearing without any incident.  The cancellation of the certificate operated for three weeks before a stay was granted by this Court on 9 December 2011.  Since the stay was granted there have been no incidents.

[10]     Other decisions, to the extent that they are broadly comparable, indicate that the appropriate penalty would be suspension for a period of between four to eight weeks.  I refer to:  Cox and Long v Jay H. Company Ltd and Patel;[2]  Verner v The

Mill Liquorsave Ltd and Godfrey;[3]  The Mill Liquorsave Ltd v Verner;[4]  Sayed and

Crawford v McGlone;[5]  Smale v Lake Wines Ltd and Horner;[6]  Grant and Long v

Westpark Hospitality Ltd and Harrison.[7]

[2] Cox and Long v Jay H. Company Ltd and Patel [2009] NZLLA 1239.

[3] Verner v The Mill Liquorsave Ltd and Godfrey [2003] NZLLA 296.

[4] The Mill Liquorsave Ltd v Verner HC Wellington CIV-2003-485-874, 18 August 2003.

[5] Sayed and Crawford v McGlone HC Tauranga CIV-2010-470-397, 29 June 2010, Cooper J.

[6] Smale v Lake Wines Ltd and Horner [2003[ NZLLA 266.

[7] Grant and Long v Westpark Hospitality Ltd and Harrison [2007] NZLLA 55

[11]     Ms  Jelas  submitted  that  the  appropriate  period  of  suspension  would  be between six to eight weeks.   Mr Wiles did not seek to argue vigorously against a period of suspension of that length.

[12]     I am satisfied that a period of suspension of six weeks would be appropriate. The cancellation  operated for a period  of just  under three weeks  following the Authority’s decision.    I consider it appropriate to take that into account. Consequently, there will be a formal suspension of three weeks. The suspension is to commence on Thursday, 10 May 2012.

[13]     The appeal is consequently allowed on these terms.

.

[14]     I record  that,  with  Mr Wiles’ consent,  I spoke  directly to  Mr Patel  and

emphasised the need for him rigorously to comply with all of his obligations for the future.  He acknowledged that he would.

Woodhouse J