Hatzis Cusack Lawyers (solicitors for the Appellant)
Director of Public Prosecutions (NSW) (Respondent)
File Number(s): 2020/00342510
Decision under appeal Court or tribunal: Local Court at Sydney
Jurisdiction: Criminal
Date of Decision: 11 June 2021
Before: Greenwood LCM
File Number(s): 2020/00342510
[2]
REVISED EX TEMPORE JudgEment
Uthumporn Samanmitmongkhol is now 39 years of age; she appeals from the conviction she suffered in the Local Court at the Downing Centre on 11 June 2021 after she pleaded guilty on 15 March 2021 to an offence contrary to s 73(1)(a) Liquor Act 2007. It provides the following:
1. A licensee must not permit -
1. intoxication, or
2. ...
3. on the licensed premises.
1. If an intoxicated person is on licensed premises other than a vessel, the licensee is taken to have permitted intoxication on the licensed premises unless the licensee proves that -
1. the licensee, and the licensee's employees or agents -
1. refused to serve the person liquor after becoming aware the person was intoxicated, and
2. asked the person to leave the premises, and
3. if the person did not leave the premises immediately after being asked to leave or refused to leave - contacted, or attempted to contact, a police officer for help in removing the person from the premises, or
1. the licensee, and the licensee's employees and agents, took the steps to prevent intoxication on the licensed premises set out in the guidelines issued under subs (5A), or
2. the intoxicated person did not consume liquor on the licensed premises.
73(5A) provides:
The secretary is to issue guidelines relating to the prevention of intoxication on licensed premises to be made publicly available in such manner as the secretary considers appropriate.
The liability attaching to a licensee such as in the circumstances relevant to this appeal is quite strict. One can see why the legislature has chosen to impose such requirements. It is notorious that intoxicated persons can be a risk to others and a risk to themselves, and thus licensees have the obligation whether at the premises or otherwise to make sure that all steps are taken to obviate the risk of patrons to the licensed premises consuming alcohol to the extent that they become intoxicated.
The magistrate who heard the matter convicted and fined the appellant against the maximum penalty of $11,000. The matter could have been dealt with by way of an infringement notice for $1,100, but this was put before the Court; I anticipate that it came to the Court as a consequence of what followed after the patron left the premises.
The facts before me in the Crown case are sparse. The agreed facts, for the purposes of the penalty notice, contain the following and are sufficiently brief for me to quote:
"On Sunday 28 June 2020 the intoxicated person attended V Bar Sydney with friends to celebrate his farewell from Sydney. During the course of the evening the intoxicated person had consumed approximately 13.5 schooners of beers over approximately five hours and 25 minutes.
At 1.09am on Monday 20 June 2020 the intoxicated person left V Bar on his own accord after the restaurant closed. The intoxicated person showed signs of intoxication as he walked to a nearby escalator that was deactivated. (sic)
The intoxicated person fell down the escalator head first. The intoxicated person died several days later in hospital".
There are many questions that exist against that brief description. I agree with the submissions that have been made that I should not bring to account as part of the objective facts against this appellant the fall that is so described.
There is material contained in the balance of the documents suggesting that the escalator at the material time was not operating and was not barricaded to show that it was not functional, but there is nothing else to explain the precise circumstances in which the intoxicated person fell down the escalator. One might infer that his state of intoxication, whatever it might have been assessed to be objectively, would have made some contribution to what there occurred, but on the material I have, bearing in mind that the standard of proof upon such matters falls upon the Crown beyond reasonable doubt, does not allow me to conclude a causal relationship between the conduct for which the appellant is now called to account and that tragic outcome.
She has some antecedents, but of a minor nature that have been explained in other material. She had been issued with two warnings previously.
One was of failing to have security during a live performance on 4 February 2021, explained with regard to the entertainment which consisted of two singers and the need to have two security officers on site when they were performing. Unfortunately, one of those security officers did not arrive at work on time and the performers began singing in the presence of one security officer only; before the other person arrived, the police apparently conducted some sort of walk-through and issued the appellant with a caution but took no further action.
There was another occasion, 27 March 2021, when she failed to display a sign with all of the prescribed particulars required for it. That was something in the nature of oversight which when brought to attention she addressed immediately by preparing a document with all the material and information required and had it placed.
I have been provided with comprehensive submissions by senior counsel who appeared on behalf of the appellant in the Local Court with reference to authority, including the decision of R v Mauger [2012] NSWCCA 51 in which Harrison J wrote of the scope of s 10 Crimes (Sentencing Procedure) Act 1999, which acknowledged the willingness of the legislature and the community to provide offenders with an opportunity in circumstances to maintain the reputation of good character and avoid the otherwise rigid application of inexorable laws. His Honour noted that in an objectively serious case where general deterrence and denunciation are important factors in sentencing, the scope of the operation of the section decreases, but focus must be maintained upon the particular conduct of the offender and the circumstances of the offending rather than the particular nature of the offence, and thus the balancing that is required, considering all of those factors to determine whether the scope of this section ought to be brought to account in this instance.
In support of the resort to s 10 of the Act the submissions remind me that the appellant had implemented a number of safeguards and strategies to address the mischief that the legislation was introduced to address. There were COVID-19 regulations in place at the time requiring all patrons to remain seated whilst consuming alcohol or a meal in the premises; there were no apparent signs of intoxication exhibited by the patron before he had gone to the toilet around the corner from where the staff were employed and only one minute before he was to depart the premises unfortunately to suffer the accident that ultimately occurred.
I agree with the submission that this offence falls toward the lower range of objective seriousness for such offences.
There is a statement from Richard Haines who is the general manager of Universe Hotels, the owner of subject premises which include the Thai Restaurant where the patron had attended with friends on this night.
Mr Haines reviewed the closed circuit television which has been in the custody of the police since this event but was not produced to the Court. Accordingly I will accept what Mr Haines has summarised in the statement he provided revealing the time when the customer arrived at the hotel, 7.45pm. At no stage is he seen on the closed circuit television going to the bar to order drinks, nor was he served with drinks by staff. Over a period of five and a half hours the group of 12 persons had provided to them, by their members purchasing from the bar, 16 jugs of beer, four stubbies and a bottle of white wine equating to an average of less than five drinks per member of the group.
The customer was seen consuming beer from a schooner which was periodically topped up from the jugs of beer. By reconstruction, cross-referencing the CCTV footage with the point of sale records, he could determine that there were 16 1.125 millilitre jugs of full-strength beer bought through the night; he determined that the customer consumed 13.5 schooners of beer in the period 7.45pm to 1.05am equating to 2.5 schooners per hour.
It is a significant quantity of beer to consume in such a period; it equates to 2.5 schooners per hour across that period, and from that alone one might conclude that there would be a level of intoxication, the precise extent of which is unable to be discerned from that analysis alone.
There was an occasion at 11.50pm when a member of the group was excluded from the premises by security guards upon the perception that he was in a state of intoxication.
The last jug of beer was purchased at 12.23am. At 12.57am the group began to leave the premises. The customer fumbled a beanie as he attempted to put it on his head; at 1.05am he lost his footing and stumbled slightly in the corridor outside the men's toilet but regained his balance.
Mr Haines visited the escalators on 1 July 2020 and observed the device to be not working with a barricade installed.
He was informed by another, a technician, that the escalator had been causing trouble for some little time, an accident had occurred recently when the escalator was out of service, and there was then no barricade or signposting as required.
There is a paragraph dealing with the impact of this conviction upon the appellant which is expanded in the later document.
There is a statement provided by the appellant describing the steps she has taken in her role as licensee to discharge her obligations that she has by reason of that position. I've read that; she also referred to the RSA training, responsible services of alcohol training sessions, which were in place in 2019 on September 3rd, in 2020 on January 15, July 14, October 13 and in 2021 on January 19.
The hotel and the restaurant are heavily patronised; she dealt with the events of the night that she was able to ascertain from reviewing the records maintained in respect of incidents. On average there are 25 persons each month asked to leave the hotel for showing signs of possible intoxication, and at 32 are refused entry for the same reason. She referred to the large numbers of walk-throughs and business inspections by police officers extending up to eight per week.
She reviewed the CCTV footage. She described what is there to be seen consistent with what Mr Haines provided in his statement. There is no need for me to rehearse that once again.
Following the incident she had a former commander of the Alcohol Licensing and Enforcement Command of New South Wales police, Mr Patrick Paroz, undertake covert surveillance of the hotel to provide her with a report of what he saw in that process and any recommendations he had to improve the system.
She is concerned about the risk of a conviction upon her current employment and the prospect of future employment. Since her conviction those fears crystallised when she was stood down from her current position. It will impact upon her opportunity to seek other employment in senior positions such as a licensee.
There are references speaking to the qualities and characteristics of the appellant. There is the report of the COVID observations made by the former police officer to which I have referred. The observations he made led to conclusions expressed at paras 54 and following in his report. There was no evidence of staff practices that would contribute to the risk of intoxication. The risk of intoxication arising from consumption of alcohol at the premises was low. The licensee, manager and security officers were proactive in their engagement with the patrons enhancing their ability to monitor patrons for signs of intoxication. There are images of the premises in the bundle with which I was provided.
Further documents came to me, including a statement by Mr John Green from 30 August 2021, the Director Liquor Licensing with the Australian Hotels Association. I have read that document. There is material speaking to the qualities and characteristics of the appellant. He includes her expressions of remorse.
There is a diagram in the form of a plan showing the position of the bar, the position of the toilet and the location where the customer was seen on the CCTV to stumble, at some distance from and not proximate to the bar.
Helpfully I have been provided with further submissions prepared by Ms Bashir SC.
The decision of the High Court of Australia in CAL No 14 Pty Ltd v Motor Accidents Insurance Board; CAL No 14 Pty Ltd v Scott [2009] 239 CLR 390 at para [53] is quoted and I will refer to that:
"Expressions like "intoxication", "inebriation" and "drunkenness" are difficult both to define and to apply."
"It is difficult for an observer to assess whether a drinker has reached the point denoted by those expressions. Some people do so faster than others. Some show the signs of intoxication earlier than others. In some the signs of intoxication are not readily apparent."
After almost five decades in the criminal justice system, in law enforcement, as a defence counsel, as a prosecutor and as a Judge that observation by the High Court is, I might say with respect, entirely accurate. To that I would add that any individual will not respond precisely in the same way to the ingestion of alcohol, depending upon the myriad of factors that might pertain on the particular occasion in which they have decided to embark upon the excessive use of alcohol.
In the submissions prepared by counsel who appeared for the appellant in the Local Court reference was made to the definition of intoxication at s 5 Liquor Act which was the subject of discussion in the State of New South Wales v Tomlinson [2018] NSWCA 151 at [57] where Meagher JA with whom the other members of the Court agreed said of the definition of intoxication:
"The definition of "intoxicated" has two parts. The first in s 5(1)(a) requires that "the person's speech, balance, co-ordination or behaviour is noticeably affected", in the sense of being impaired. What is described is a state of affairs which must be proved as an objective fact, and not as a subjectively held opinion of the person seeking to exercise the power as to the existence of that state of affairs. The second part requires that state of affairs "in the circumstances" be sufficient to induce a reasonable person to believe "that the affected speech, balance, co-ordination or behaviour is the result of the consumption of liquor". See George v Rockett (1990) 170 CLR 104 at 112; [1990] HCA 26 (the Court); Prior v Mole [2017] HCA 10; 91 ALJR 441 at [24] (Gageler J). Thus the definition of "intoxicated" is satisfied if the state of affairs in paragraph (a) exists and viewed objectively is sufficient in the circumstances to induce a belief that it is the result of the consumption of liquor."
In this case I agree with the submissions made on behalf of the appellant that but for the assistance she provided in response to the investigation and the plea of guilty the prosecution might well have been in some difficulty establishing that there was an offence made out.
The evidence before me is that the person did not exhibit any of the representations from which intoxication might be inferred objectively during the course of the evening. He did not go to the bar to buy drinks; he was not seen standing at any time; it was only on two discrete occasions right at the end of the evening when the service was closed and he was to leave the premises that there was some presentation that might have given rise to the suspicion that he was intoxicated.
The material clearly establishes that the appellant was on her night off and that she had taken what I believe to be all reasonable steps that might be expected of someone who was in her position to make sure that the duty manager and staff met their responsibilities.
I agree with the submission made by senior counsel appearing today that when one brings to account the facts and circumstances of the offence, the opportunity that was available to observe the patron before service was concluded and that he was in the process of leaving the premises, the multiple proactive steps taken by the appellant in her role as licensee to meet guidelines and prevent intoxication on the premises, the absence of any aggravating factors, the assistance which it is said attracted the force of s 23 Crimes (Sentencing Procedure) Act 1999, the mitigating factors are many. The plea of guilty utilitarian discount to be applied is at the higher level. The admissions she made as I have said attract s 23. There is clearly demonstrated contrition and remorse and I am satisfied that prospects of rehabilitation are good. There are no aggravating factors. There is a low risk of re-offending.
I am reminded of what Mr John Green wrote at para 11 that the measures taken by the appellant in her management as licensee of the premises were simply best practice.
I agree that this is a case that calls out for the application of s 10 Crimes (Sentencing Procedure) Act 1999 and specifically s 10(1)(b) with the imposition of a bond would meet the purposes of sentencing and specifically that of general deterrence and the need for denunciation.
Accordingly, I shall allow the appeal.
I confirm the finding of guilt made by the Magistrate in response to the plea of guilty and the material tendered.
I set aside the conviction and in lieu thereof I discharge the appellant upon her entering into a bond to be of good behaviour for a period of 12 months from today pursuant to s 10(1)(b) Crimes (Sentencing Procedure) Act 1999. The usual conditions only shall apply, namely, that she be of good behaviour and she appear before Court if called upon to do so during the term of the bond.
I shall leave the material on file in the event that I am called upon to return to the matter if there is a breach.
The appellant acknowledged that she would be bound by the terms of my orders, the particulars of which would be despatched to her from the Court for her signature and their return.
[3]
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Decision last updated: 16 December 2021