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Shale - Ekehatuna Inn [2017] NZARLA 49 (16 February 2017)

Last Updated: 3 March 2017

[2017] NZARLA 49-50

IN THE MATTER of the Sale and Supply of

Alcohol Act 2012

_AND

IN THE MATTER of an application pursuant to s.280 of the Act for suspension of on- licence number 41/ON/5453/2015 issued to MICHAEL RICHARD SHALE, in respect of premises situated at 2 Bengston Street, Eketahuna, known as "Ekehatuna Inn"

_AND

IN THE MATTER of an application pursuant to s.285 of the Act for suspension of manager’s certificate number

044/GMC/162/2002 issued to

_{MICHAEL RICHARD SHALE}

BETWEEN KARL ANTHONY WILLIAMS

(Police Officer of Woodville)

_Applicant

_{AND MICHAEL RICHARD SHALE}

_Respondent

_{BEFORE THE ALCOHOL REGULATORY AND LICENSING AUTHORITY}

Chairperson: District Court Judge K D Kelly

Member: Mr D E Major

HEARING at WELLINGTON on 8 February 2017

_APPEARANCES

Sergeant S D Benge – NZ Police – for applicant Ms S L Lotoaso – for first and second respondent Mr M R Shale – first and second respondent

_{DECISION OF THE AUTHORITY}

Introduction

[1] There are two enforcements applications before the Authority. The first is for the suspension of the on-licence issued to Michael Richard Shale in respect of premises situated at 2 Benston Street, Eketahuna, known as “Eketahuna Inn”. The second

application is for the suspension of the manager’s certificate issued to Michael Richard Shale. Both applications arise from the failure of a controlled purchase operation conducted on Thursday 10 December 2015.

[2] The grounds for the applications, which are sought pursuant to s 280(3)(a) and s 285(3)(a) of the Act, allege that the licensed premises have been conducted in breach of s 239 (sale and supply of alcohol to people under purchase age on or from a licensed premises), of the Act. In the case of the manager, it is alleged that he failed to conduct the licensed premises in a proper manner as a consequence of the failed controlled purchase operation.

Agreed Facts

[3] The agreed facts in respect of this matter establish that on Thursday,

10 December 2015, the Tararua Police along with the Licensing Inspector and the Ministry of Health conducted a controlled purchase operation. At 2.04 pm two female volunteers aged 17 entered the “Eketahuna Inn” and approached the bar. No staff were present at the bar. After the volunteer minors waited a few minutes, the applicant entered the bar.

[4] As the applicant knew the layout of the premises, he made his way to the area of the building where the respondent was and called out, advising the respondent that the two volunteers were at the bar waiting for service. The respondent went to the bar, spoke with the volunteers who ordered two Gordon’s Gin and Tonic RTD drinks having an alcohol content of 7%. The purchase was completed using an EFTPOS card provided by one of the volunteers. At no time did the respondent question the volunteers as to their age or ask for any identification.

[5] Upon being made aware of what had occurred the respondent indicated that he was disappointed and acknowledged that he should ask for identification from anyone who looks under 25 but he was ‘flustered’ as a result of being called out from the back.

Submissions

Applicant’s submissions

[6] The applicant submitted that as the facts and grounds of the application have been agreed, an order for suspension of the respondent’s licence and manager’s certificate is appropriate.

Respondent’s submissions

[7] The respondent submits that notwithstanding that the facts are agreed, the suspension application should be dismissed on the grounds that the Police Officer was actively engaged in the controlled purchase operation and significantly contributed to the “deception” that led to the sale. The respondent also submitted that the application might be adjourned to enable counsel to more fully prepare for the hearing. Alternatively, the respondent sought suspensions of 24 hours for the licence and one week for the duty manager based on a number of mitigating factors.

[8] In particular, the respondent says that the delay of six months between the date of the controlled purchase operation and the application being filed with the Authority,

especially when combined with the time that has taken for this matter to be set down for a hearing, amounts to a period of 14 months having elapsed since the controlled purchase operation.

[9] During this period the respondent has not incurred any further blemishes to his record which might otherwise be considered aggravating factors. And, on the basis of what the Authority said in Mackereth v Winton [2013] NZARLA 247, “justice delayed is justice denied”. It is submitted that the delay between the failure and the application being brought by the Police is excessive and is not the result of the respondent’s action.

Decision and Reasons

[10] The test for suspension is a two-stage process which requires the Authority to be satisfied not only of the grounds in s 280(3) and s 285(3) respectively, but if it desirable to make an order (per s 280(5) and s 285(5)).

[11] Having heard from the parties, the Authority is of the opinion that the grounds have been made out but that it is not desirable that there be a suspension of either the off-licence and the manager’s certificate.

[12] Of concern to the Authority is that as part iof the controlled purchase operation the applicant left the bar area and proceeding through the dining area and two sets of doors to find the respondent who was in the accommodation block repairing a television set. While not fully argued by the respondent, the respondent has challenged the active involvement of the Police Officer in the controlled purchase operation and submits that it significantly contributed to failure.

[13] In Jiaqing Dong v Police (High Court, Palmerston North, CRI-2004-454-27,

17 July 2006) McKenzie J considered the issue of conduct that amounts to entrapment. In essence, the test is whether the conduct concerned involves merely providing the opportunity for the offending to take place, in which case the conduct is permissible, or whether it constitutes active encouragement resulting in a crime being committed that would otherwise not have been committed. McKenzie J cited the test in Taylor v Vandna Enterprises Limited (High Court, Auckland, AP 22-PL02-25 July 2002) whichin turn referred to the Houe of Lords decision of R v Looseley, Attorney General’s Reference No. 3 of 2002[2001] UKHL 53; , [2001] 4 All ER 897 where Lord Nichols said the overall consideration about whether the conduct of the Police or another law enforcement officer was so serious and improper as to bring the administration of justice into disrepute involved consideration of the the nature of the offence, the reason for the particular Police operation, the defendant’s criminal record, and the nature and extent of the Police participation in the offending.

[14] The greater the inducement by Police or the more forceful and insistent the Police overtures are, the more readily it may be concluded that the Police have crossed the boundary between what is permissible and what is not permissible. The test, however, is high. In Taylor v Vandna asking a volunteer to lie about his age that was not considered to be enough to instigate the offending.

[15] In the present matter, notwithstanding that the Police appear to have taken steps to seeking out the licensee to serve the volunteer minors, the Authority does not consider that it has been established that the applicant has actively contributed to the

offending. Nevertheless the Authoirty has concerns about the appropriateness of the applicant actions in seeking out the respondent as he did and does not consider that to be best practice in a controlled purchase operation.

[16] On the other hand, the premises were quiet and licensees and managers need to be able to retain their presence of mind when faced with distractions of this sort. This will be particularly important when premises are busy.

[17] The circumstances of taking six months to bring an application before the

Authority is unexplained.

[18] The Authority is also mindful that the respondent are one in the same and that he has just recently taken over the premises a month and 10 days prior and was trying to get a failing business back into operation. Prior to this incidence, with a 40 or so year history in the industry, the respondent has not come to the attention of the Authority.

[19] For the reasons stated, in the circumstances, the Authority does not consider it

desireable to make an order in respect of either the licence or the manager’s certificate.

DATED at WELLINGTON this 16th day of February 2017

J S Mitchell

Secretary

Michael Richard Shale.doc(jeh)