AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 5 December 2016

Director of Public Prosecutions v Stephen Grant O’Sullivan

[2016] NSWDC 331

Public order & justice offences
CRIMINAL LAW LIQUOR LICENSING SERVICE OF ALCOHOL TO UNDERAGE PERSONS RESPONSIBLE SERVICE OF ALCOHOL MULTIPLE OFFENCES PLEA OF GUILTY APPEAL

Citation: Director of Public Prosecutions v Stephen Grant O'Sullivan [2016] NSWDC 331
Court: District Court of New South Wales
Date: 5 December 2016
Judge: Judge AC Scotting

Background

The respondent was the licensee and general manager of a large hotel in Manly, Sydney. On the night of 12 September 2015, four young persons aged 17 entered the hotel without a responsible adult and, over several hours, were served alcohol on multiple occasions by hotel staff without being asked for identification. Police discovered the group during a covert audit at around 11.30pm.

The respondent was charged with four counts of allowing a minor to enter and remain on licensed premises (contrary to s 124(1)(b) of the Liquor Act 2007) and three counts of allowing liquor to be sold or supplied to a minor (contrary to s 117(8) of the Act). He pleaded guilty to all seven offences in the Local Court.

At the Local Court, Magistrate Longley found the offences proved but discharged the respondent on condition he enter into a two-year good behaviour bond under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999, recording no conviction. The Director of Public Prosecutions appealed to the District Court on the ground that the sentence was inadequate.

  • Whether the magistrate's decision to impose a s 10 good behaviour bond, without recording a conviction, was an adequate sentence for seven liquor licensing offences.
  • Whether a s 10 order was appropriate where the primary purpose was, in effect, to avoid the statutory "three strikes" regime under the Liquor Act 2007.
  • What weight should be given to mitigating factors, including the respondent's experience, prior good record, cooperation, remorse, and any extra-curial punishment.
  • What penalty, applying the principles of totality and parity, was appropriate across the seven offences.

Decision

Judge Scotting allowed the Crown appeal, finding that a non-conviction bond was not an adequate response to the offending. The offences were serious: four underage persons had been in the venue for several hours without a responsible adult, and hotel staff had supplied alcohol to them repeatedly without once asking for identification. The court found that the hotel's system for preventing service to minors was both flawed in design and poorly enforced by the licensee.

The court distinguished this case from several comparable licensing decisions (concerning a Catholic Club, a Rhododendron Festival and a country race day) where courts had imposed lenient sentences. In those cases, the licensees had implemented sound compliance systems that had broken down due to individual staff failures. Here, by contrast, the system itself was deficient and the licensee had not been diligent in its enforcement.

The court acknowledged genuine mitigating factors: the respondent had no prior licensing convictions, had a long and responsible career in hospitality, cooperated with police, expressed remorse, and had lost his employment as a result of the incident (a form of extra-curial punishment). The court also noted that a s 10 bond is capable, in principle, of conveying general deterrence and denunciation. However, it held that using s 10 to avoid the consequences of the statutory three-strikes regime under the Liquor Act was not a proper basis for withholding a conviction.

Applying the principles of totality and relative seriousness, the court imposed fines across all seven offences, with convictions recorded. The fines were graduated to reflect the difference between the s 124 offences (maximum $5,500, no imprisonment) and the more serious s 117 offences (maximum $11,000 and/or 12 months' imprisonment).

Orders Made

  • The appeal was allowed.
  • The magistrate's order was set aside.
  • Convictions were recorded for all seven offences.
  • Section 124 offences (allowing minors to enter and remain):
  • Sequences 1 and 2: fine of $750 each
  • Sequences 3 and 4: fine of $450 each
  • Section 117 offences (allowing liquor to be supplied to a minor):
  • Sequence 5: fine of $1,800
  • Sequences 6 and 7: fine of $750 each
  • Total fines: $5,700

Key Takeaways

  • A s 10 good behaviour bond is not an appropriate vehicle for avoiding the operation of a separate statutory regime, such as the three-strikes provisions of the Liquor Act 2007. The District Court confirmed that the desire to sidestep collateral consequences is not a proper basis for withholding a conviction.

  • Under the Liquor Act 2007, a s 10 order does not attract a "strike" under the three-strikes regime, which means a licensee who receives a bond rather than a conviction avoids a consequence the legislature expressly contemplated for this category of offence.

  • Extra-curial punishment (such as loss of employment) and genuine remorse are relevant mitigating factors in liquor licensing sentencing, but they do not displace the need for a conviction and a financial penalty where offending is objectively serious.

  • Parity with comparable licensing cases requires careful factual analysis. Lenient outcomes in other large-venue cases turned on the existence of sound compliance systems undermined by individual staff; where the system itself is flawed and poorly supervised, those precedents provide limited assistance to a respondent.

  • The sentencing court applied totality by graduating fines across seven counts, distinguishing between the less serious s 124 offences (entry and presence of minors) and the more serious s 117 offences (supply of alcohol to minors), which carry a potential custodial penalty.

Legislation and Cases Referenced

Legislation
- Liquor Act 2007 (NSW), ss 3(1)(a), 3(2), 117, 117(8), 124(1)(b), 144B, 144C, 144D, 144D(4), 147(2), 148(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 21A(3), 22
- Crimes (Appeal and Review) Act 2001 (NSW), ss 23, 26, 27, 68A
- Corporations Act 1989 (Cth), s 229

Cases
- R v JW [2010] NSWCCA 49
- Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289
- Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137
- Axer v Environment Protection Authority (1993) 113 LGERA 357
- Hoskins v R [2016] NSWCCA 157
- Cobiac v Liddy (1969) 119 CLR 257
- R v Nguyen [2002] NSWCCA 183
- R v Fing (unreported, NSWCCA, 4 October 1994)
- R v Stephenson [2010] NSWSC 779
- Lavaroto v R [2012] NSWCCA 61
- Ray v R (unreported, NSWDC, 21 October 2013)
- Williams v R (unreported, NSWDC, 15 October 2010)