Pedro Sotomayor; Teresa Sotomayor; Gonzalo Olmos and Rebecca Olmos v the Registrar of Liquor Licences Sca [1990] ACTSC 10; (1990) 100 FLR 249 (29 March 1990)

SUPREME COURT OF THE ACT

PEDRO SOTOMAYOR; TERESA SOTOMAYOR; GONZALO OLMOS
and REBECCA OLMOS v. THE REGISTRAR OF LIQUOR LICENCES
S.C.A. No. 38 of 1988
Appeal - Liquor
[1990] ACTSC 10; (1990) 100 FLR 249

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Gallop J.(1)

CATCHWORDS

Appeal - rehearing de novo - factors relevant to exercise of discretion

Liquor - cancellation of off-licence - convictions for offences - exercise of discretion

Liquor Act 1975, ss.43A, 43C, 43E, 47, 48(1), 48(2), 51(1)-(4), 76(1)(e), 76(3), 76(4), 80(1)

Interpretation Ordinance 1967, s.38

Hook v. Registrar of Liquor Licences (1980) 35 ACTR 1

Builders' Licensing Board NSW v. Sperway Constructions (Sydney) Pty Limited [1976] HCA 62; (1976) 135 CLR 616; 14 ALR 174

Superintendant of Licences v. Ainsworth Nominees Pty Limited (1987) 9 NSWLR 691

Iliadis and Others v. The Registrar of Liquor Licences (1987) 75 ACTR 1; (1989) 83 ALR 54

Kurringai Municipal Council v. Attorney-General for the State of New South Wales [1957] HCA 61; (1957) 99 CLR 251

Victorian Stevedoring and General Contracting Co. Limited v. Dignan [1931] HCA 34; (1931) 46 CLR 73

HEARING

CANBERRA
29:3:1990

ORDER

The appeal be dismissed with costs.

The order made by Miles C.J. on 22 July 1988 be discharged.

DECISION

This is an appeal by persons carrying on business in partnership at premises known as the Civic Supermarket, Canberra City. On 21 February 1985 Off Licence No. 256 granted under the Liquor Act 1975 was transferred to the partners by name i.e. Pedro and Teresa Sotomayor and Gonzalo and Rebecca Olmos. Following the three convictions of the appellant Pedro Sotomayor for offences against s.80(1) of the Act for selling liquor to a person under the age of 18 years, the Registrar of Liquor Licences applied on 18 March 1988 pursuant to the Act to the Australian Capital Territory Gaming and Liquor Authority for cancellation of the subject licence. After a hearing on the merits the Authority made a decision on 29 June 1988 that Off Licence No. 256 be cancelled forthwith.

2. From that decision the appellants appeal to this Court pursuant to s.76(1)(e) of the Act. The appeal is in the nature of a rehearing (s.76(3)). This Court may affirm, set aside or vary the decision of the Authority and make such other order as justice requires (s.76(4)).

3. In the ordinary course the appeal to this Court would be a rehearing de novo (see Hook v. Registrar of Liquor Licences (1980) 35 ACTR 1 at pp 4-5 citing Builders' Licensing Board NSW v. Sperway Constructions (Sydney) Pty Limited [1976] HCA 62; (1976) 135 CLR 616; 14 ALR 174). Accordingly the respondent to this appeal should ordinarily have had to present its case anew. However, it was open to the parties to agree, and they did so agree, that the appeal to this Court should proceed substantially upon the oral evidence and documentary exhibits before the Authority subject to such other evidence as the parties desired to adduce. Such a course is not unusual (see, for instance, Superintendant of Licences v. Ainsworth Nominees Pty Limited (1987) 9 NSWLR 691 at 694).

4. The facts giving rise to the cancellation are that on 26 May 1987 Pedro Sotomayor was convicted on his plea of guilty in the Magistrates Court, Canberra, of an offence against s.80(1) of the Act in respect of the sale of liquor to one Michael Hammond, then aged 14 years 11 months. On 8 March 1988 Pedro Sotomayor was again convicted on his plea of guilty of an offence against s.80(1) of the Act in respect of the sale of liquor to one Nicole Harstead, then aged 15 years 8 months. That offence had been committed on 15 March 1987, which is a relevant fact for the purposes of this appeal. On the same day in the same Court, Pedro Sotomayor was also convicted on his plea of guilty of another offence against s.80(1) of the Act in respect of the sale of liquor to the same Nicole Harstead. That second offence had also been committed on 15 March 1987 and within half an hour of the last mentioned offence. The Court imposed penalties of $300 and $400 respectively in respect of those offences.

5. No doubt as a result of the decision of this Court in Iliadis and Others v. The Registrar of Liquor Licences (1987) 75 ACTR 1, affirmed by the Federal Court of Australia (1989) 83 ALR 54), the Act was amended by Act No. 72 of 1987 (which came into effect on 22 December 1987). For the purpose of considering the appellants' submissions, the relevant provisions are:
"Division 5 - Licences held by partnerships Application

43A. Where a licence is held by one or more of a
number of partners for the purposes of the partnership,
sections 43C, 43D and 43E apply in relation to the
licensee and to each partner -
(a) whether or not the partner's name appears on the
licence; and
(b) whether or not subsection 43B(1)(, (2), (3) or
(4), as the case requires, has been complied with
in relation to the partner.
...
Rights and liabilities of partners
43C. Where a licence issued in the name or names
of one or more of a number of partners is held for the
purposes of the partnership, each partner has, in
relation to the licence, all the rights and duties of
the licensee.
Offences by partners
43D. (1) For the purposes of paragraphs 48(c) and
51(c), where:
(a) a licence issued in the name or names of one or
more of a number of partners is held for the
purposes of the partnership;
(b) any of the partners is convicted (whether before
or after the commencement of the Liquor
(Amendment) Ordinance (No. 2) 1987) of any offence
in relation to the licence in respect of an act or
omission; and
(c) any of the partners is convicted after that
commencement of an offence (not being an offence
in respect of the act or omission referred to in
paragraph (b));
the licensee shall be taken to have been convicted of 2
offences against this Ordinance whether or not -
(d) the partner referred to in paragraph (b) was a
member of the partnership at the time the offence
referred to in paragraph (c) was committed; or
(e) the partner referred to in paragraph (c) was a
member of the partnership at the time the offence
referred to in paragraph (b) was committed.
(2) In this section, 'offence against this
Ordinance' has the same meaning as in Division 3 of
Part V.
Suspension or cancellation of a partner's licence
43E. Where a licence held by one or more of a
number of partners for the purposes of the partnership
is suspended or cancelled as a result of an act or
omission, the licence shall not be transferred, and a
licence shall not be issued, to any person who was or
is, at the time of the act or omission, or while the
suspension or cancellation is in force, a member of the
partnership."
"47. In this Division, "offence against this
Ordinance" includes an offence against the repealed
Ordinance.
48. (1) Where it comes to the notice of the
Registrar that -
(a) the holder of a licence is serving a sentence of
imprisonment imposed in respect of his conviction
for an offence;
(b) the holder of a licence has been convicted of an
offence against the Police Offences Ordinance
1930, The Unlawful Games Ordinance 1984, the
Crimes Act 1914 or the Crimes Act, 1900, of the
State of New South Wales in its application to the
Territory; or
(c) the holder of a licence has, on 2 or more
occasions, been convicted of an offence against
this Ordinance,
the Registrar shall make an application to the
Authority for an order under this Division.
(2) Where a licence issued in the name or names
of one or more of a number of partners is held for the
purposes of the partnership, a reference in subsection
(1) to the holder of a licence shall be read as
including a reference to any of the partners who is
concerned in, or takes part in, the management of the
partnership's business in relation to the licence -
(a) whether or not the partner's name appears on the
licence; and
(b) whether or not subsection 43B(1), (2), (3) or (4),
as the case requires, has been complied with in
relation to the partner."
"51. (1) The Authority may, by order, cancel a
licence where -
(a) the licensee is serving a sentence of imprisonment
imposed in respect of his conviction of an
offence;
(b) the licensee has been convicted of an offence
against the Police Offences Ordinance 1930, the
Unlawful Games Ordinance 1984, the Crimes Act 1914
or the Crimes Act, 1900, of the State of New South
Wales in its application to the Territory and it
would be contrary to the public interest that he
continue to hold the licence;
(c) the licensee has been convicted of 2 or more
offences against this Ordinance; or
(d) the licensee has contravened or failed to comply
with a direction given to him by the Authority.
(2) The Authority shall not make an order upon
the ground that a licensee has been convicted of 2 or
more offences against this Ordinance unless it is
satisfied that:
(a) the offences of which the licensee has been
convicted are of sufficient gravity to justify the
cancellation of his licence; and
(b) in all the circumstances, the matter is not one in
which the giving of directions by the Authority
would be likely to be effective to prevent the
commission of further offences against this
Ordinance by the licensee.
(3) The Authority shall not make an order upon
the ground that a licensee has been convicted of 2 or
more offences against this Ordinance if the Authority
is satisfied that both or all of those offences, as the
case may be, arose out of the same, or substantially
the same, acts or omissions.
(4) ..."

6. In its reasons for decision the Authority said:

"The recording against a member or, collectively, more
than one member of a partnership of more than one
conviction against the Liquor Ordinance after the
introduction of the Liquor Amendment Ordinance (No. 2)
1987 renders the partnership liable to have the liquor
licence it holds cancelled. Sections 43A to 43E have
been inserted. Sections 46, 48 and 51 have been
amended. The effect of those amendments is that if one
partner has been convicted of an offence against the
Ordinance and another partner has been convicted of an
offence against the Ordinance, whether they were in
partnership together or not at the time of the first
offence, provided the subsequent conviction takes place
after the commencement date of that amending Ordinance,
the licence held by the partnership is liable for
cancellation as if the offender (or offenders) was the
same single licence holder so convicted on each
occasion. The Ordinance in question came into effect
on 22nd December 1987.
The convictions of Pedro Sotomayor for the offences
against sub-section 80(1) of the Ordinance in respect
of sales to Nicole Harstead occurred on 8th March
1988. Accordingly, the Authority has power to cancel
the licence in question notwithstanding that only one
of the partners has been convicted of offences against
the Ordinance."

7. It was submitted on behalf of the appellant that as the two offences against the Act were committed by Pedro Sotomayor before the commencement of Ordinance No.72 of 1987, which included s.43D, s.43D had no operation and that to construe s.43D otherwise would produce unfairness.

8. As stated above, Pedro Sotomayor was convicted of the two offences against s.80(1) of the Act in respect of the sale of liquor to Nicole Harstead on 8 March 1988, which, of course, is after s.43D came into operation on 22 December 1987, whereas the offences were committed before that commencement. The construction of s.43D is not without difficulty. In my opinion it should be construed as a facilitating provision designed to aid in the construction of paras.48(c) and 51(1)(c). Its purpose appears to be to provide for a factual situation where one partner is convicted of an offence in relation to the partnership licence (whether that offence was committed before or after the commencement of the Liquor (Amendment) Ordinance (No.2), No. 72 of 1987) and another partner has been convicted of another offence after the commencement of that Ordinance. It is not directed to the situation where two offences have been committed by the same partner after the commencement of the Liquor (Amendment) Ordinance (No.2), No. 72 of 1987. In my opinion s.43D has no application to the facts of this appeal.

9. It is necessary to have regard to the substantive provisions dealing with the cancellation of licences, namely s.48(1)(c) and 51(1)(c) as set out above. The difficulty which might be perceived in relation to those two provisions is that the licensee, namely the partners, have not on two or more occasions been convicted of an offence against the Act. The holder of the licence at the relevant time was the partnership and not Pedro Sotomayor.

10. In my opinion the difficulty is resolved by s.48(2). The Authority was correct in holding that the conviction of Pedro Sotomayor on 8 March 1988 in respect of two offences committed on 15 March 1987 gave rise to the power to cancel the licence in question, notwithstanding that he was the only partner convicted of offences and that he was convicted after the amending Ordinance came into operation.

11. With regard to the fairness of the cancellation in those circumstances, it was submitted that if Pedro Sotomayor had been convicted of those offences prior to the amending Ordinance coming into operation the partnership would not have been liable to have its licence cancelled and it was through no fault of the appellants that in the ordinary court processes the convictions did not occur until after the amendment.

12. I am not particularly impressed with that argument. Prior to my decision in Iliadis v. Registrar of Liquor Licences, supra, licences were issued in the name of partnerships. As I held in that case, the Act did not provide for licences to be issued in that way. But, in my opinion, it does not avail the appellants anything that their licence could not have been cancelled if Pedro Sotomayor had been convicted of the offences to which he pleaded guilty prior to the amending Ordinance coming into effect. I agree with the observations of the Authority that breaches of s.80 are grave per se and that the provision seeks to address a serious social problem. I do not agree with the submission that the fact that the convictions were incurred after rather than before the amending Ordinance has operated unfairly against the appellants.

13. The next submission on behalf of the appellants was that Pedro Sotomayor was convicted of two offences created by s.80(1) and that those offences no longer existed at the time of the cancellation of the licence by virtue of the repeal of s.80(1) by the amending Ordinance. Put another way, the submission was that in authorising the Authority to cancel a licence where the licensee has been convicted of two or more offences against the Act, s.51(1) is directed to offences against the Act as they exist at the time of cancellation.

14. There are a number of reasons why this submission must fail. "Where an Ordinance repeals an Ordinance or part of an Ordinance, then, unless the contrary intention appears, the repeal does not ... (d) affect a penalty, forfeiture or punishment incurred in respect of an offence committed against the Ordinance or the part of the Ordinance so repealed" (s.38, Interpretation Ordinance 1967). It follows that the convictions of Pedro Sotomayor against s.80(1) of the Act prior to amendment remain as valid convictions notwithstanding the repeal of s.80(1) and its re-enactment in a different form. The operation of an analogous provision in New South Wales is discussed by Dixon C.J. in Kurringai Municipal Council v. Attorney-General for the State of New South Wales [1957] HCA 61; (1957) 99 CLR 251 at 265. See also Victorian Stevedoring and General Contracting Co. Limited v. Dignan [1931] HCA 34; (1931) 46 CLR 73 at 106.

15. When the Authority came to consider whether the licensee had been convicted of "two or more offences against this Ordinance", it was the fact that Pedro Sotomayor had been convicted of two or more offences against the Act, although the provisions creating those offences had been repealed by the amending Ordinance. It is not to the point, in my view, that the conduct which founded his convictions was no longer conduct which would found convictions at the time of the hearing before the Authority. Indeed, the terms of s.43D seem to contemplate convictions for an offence existing before the commencement of the amending Ordinance in addition to convictions for offences existing after the commencement of the amending Ordinance.

16. The next submission on behalf of the appellants was that the two offences committed on 15 March 1987 "arose out of the same, or substantially the same, act or omission" so as to give rise to the operation of s.51(3).

17. The Authority considered a similar submission and determined that although both offences arose out of Pedro Sotomayor's act or omission in allowing Rebecca to dispense liquor on 15 March 1987, the two offending transactions were entirely separate in time. It said that the young person served had gone out of the store for 30 minutes in between the two transactions, had come back for more liquor and that each act of serving the young person was a different act from the other.

18. The submission on behalf of the appellants was that that decision was wrong because it was the same purchaser involved in both transactions which were close in time, the sales arose out of a continuation of the same fault and, unless viewed as the same transaction, even two transactions 30 seconds apart would be held to be different and otherwise unrelated transactions.

19. I do not agree with that submission. On my understanding of the facts, which are not in dispute, they were separate transactions notwithstanding that they involved the same purchaser and the same representative of the appellants making both sales. It is true that both sales were attributable to the same failure by the 12 year old niece to recognise that the purchaser was under-aged. But that does not establish that they did not arise out of the same, or substantially the same, acts or omissions. The acts or omissions are those which amount to the offences, not those which explain how the offences came to be committed.

20. The next submission was that the two offences committed on 15 March 1987 were not "of sufficient gravity to justify the cancellation" of the appellants' licence within the meaning of s.51(2)(a).

21. Section 51(2) of the Act places two restrictions on the powers of the Authority to cancel a liquor licence. It provides:

"(2) The Authority shall not make an order upon
the ground that a licensee has been convicted of 2 or
more offences against this Ordinance unless it is
satisfied that:
(a) the offences of which the licensee has been
convicted are of sufficient gravity to justify the
cancellation of his licence; and
(b) in all the circumstances, the matter is not one in
which the giving of directions by the Authority
would be likely to be effective to prevent the
commission of further offences against this
Ordinance by the licensee."

22. The Authority considered whether the offences of which Pedro Sotomayor had been convicted were of sufficient gravity to justify the cancellation of the licence and the appropriateness of giving directions. It observed that offences against s.80 are grave per se and that it would have to be an exceptional case for such an offence not to be "of sufficient gravity". The Authority went on to consider the circumstances surrounding the commission of the offence in respect of Michael Hammond. The Authority said that it was in doubt about whether the youth had in fact purchased or misappropriated the liquor in question and, notwithstanding Pedro Sotomayor's plea of guilty in the Magistrates' Court, reflected that if he had defended the case he may well have been acquitted. Accordingly, the Authority held that the conviction in relation to Michael Hammond was not of sufficient gravity to warrant the cancellation of the licence.

23. The Authority went on to hold that the second and third convictions were "plainly sufficiently grave to warrant cancellation even without the prior conviction".

24. The facts as found by the Authority in relation to those two convictions were as follows. Rebecca Sotomayor, then 12 years old, a niece of Pedro Sotomayor, was permitted to serve liquor. She did so twice to Nicole Harstead on the same day. That girl was aged 15 years 8 months. The offences were approximately 30 minutes apart. The Authority accepted that Rebecca was doing her best, that she was clearly a truthful young person and that she would never knowingly have done what she knew to be wrong. It said the entire blame for the offences had to rest with Pedro Sotomayor. He failed to exercise supervision; he put his niece at risk of being concerned in an offence; he ought to have realised that a 12 year old girl could not be expected accurately to assess the age of customers and refuse service to those she ought to refuse service to. The fact that business was brisk that day and that a more experienced staff member did not attend should have led Pedro Sotomayor either to close one of the two checkouts or have Rebecca refer all would-be purchasers of liquor to him. The Authority considered that it was a gross dereliction of responsibility for the licensee to have so conducted the business. In noted that it was not the first occasion that Rebecca had served in the shop, although there was no evidence that liquor was sold to minors on any previous occasion.

25. The sale of liquor to under-age persons cannot be regarded as less than grave in the scale of offences created by the Act. Any determination that convictions of that type are not of sufficient gravity would, in my opinion, be wrong. But the submission on behalf of the appellants went further. It was submitted that if the appellants had been prosecuted for the offences committed by Pedro Sotomayor before the amending Act had come into effect, they could not have been convicted because they had wrongly been issued with the subject licence in their individual names as partners. It was submitted that on that basis the offences committed by Pedro Sotomayor were not of sufficient gravity.

26. In my judgment, that argument should not prevail. It is true that the licence had been issued in the individual names of the appellants as partners and that that was an error, as was demonstrated by the decision in Iliadis, but the sale of liquor to under-age persons is still a grave offence, whether committed by an individual holder of a licence (as prescribed by s.80(1) prior to the amending Act), or by a number of persons carrying on business in partnership on premises where the sale of liquor is authorised (which would constitute an offence under s.80(1) as amended).

27. The next submission was based upon s.51(2)(b) as set out above. The submission was that this Court should hold that in all the circumstances the matter is one in which the giving of directions would be likely to be effective to prevent the commission of further offences against the Act by the appellants, and that, accordingly, the order for cancellation should not be made. The suggested directions were:

(a) that the licensee take all reasonable steps not to
permit persons themselves under the age of 17 to
sell liquor pursuant to the licence;
(b) that the licensee not permit Pedro Sotomayor to
participate in the administration or management of
the sale of liquor pursuant to the licence or to
be in charge of the premises; and
(c) that the licensee expel Pedro Sotomayor from the
partnership.

28. In addition, the following directions, which had been suggested to the Authority and are set out in the Authority's reasons for judgment, were also proffered:

(1) that minors not be permitted to sell liquor;
(2) that the liquor section of the shop be made more
secure to prevent theft by minors;
(3) that more adult staff be employed, particularly
when festivals in Commonwealth Park are held (not
less than four adults were suggested); and
(4) that the licensees and their staff accept only
original driver's licences or birth certificates
as evidence of age and obtain a signature relative
to any licence.

29. Undertakings in identical terms were offered to the Court as the basis upon which the Court would exercise its discretion not to cancel the appellants' licence. Counsel for the appellants conceded that the last direction suggested would be beyond the operation of the Act because its effect would be to change the licensee. Nevertheless it was maintained as one of the undertakings offered by the appellants as one of the terms upon which the Court should not order cancellation of the licence.

30. In rejecting the submission that it was an appropriate case in which to decline an order for cancellation, the Authority expressed the view that the reference to directions in s.51(2)(b) is a reference to a direction which may validly be given pursuant to s.46(1) of the Ordinance. It said that it was confirmed in that opinion not only because of the views of Connor J. expressed in Hook v. Registrar of Liquor Licences, supra, but also because if directions were given they would need to be enforced. It further considered that in the case of two or more breaches of s.80 of the Ordinance it was not appropriate to give directions which would be effective or likely to be effective to prevent the commission of further offences.

31. In my opinion this Court should be slow to adopt a different attitude to that of the Authority in respect of directions. Section 51(2)(b) empowers the Authority to act administratively. Even though an appeal to this Court is a rehearing de novo, I am of the opinion that this Court should pay proper respect to the Authority's discretion to deal with the non-cancellation of a licence in an administrative way. I decline to dispose of this matter on the basis of directions pursuant to s.51(2)(b).

32. Lastly, it was submitted on behalf of the appellants that the Authority and, on appeal, this Court, has an unlimited discretion whether to cancel a licence or not pursuant to s.51(1). Various submissions were advanced as to why the discretion should be exercised in the appellants' favour and cancellation not ordered in all the circumstances of this case. I set out those various submissions as follows.

(1) Pedro Sotomayor no longer participates in
the administration of the business. When he gave evidence
before the Authority on 21 June 1988 he said that
he was running a service station in Goulburn
and that he physically left the business on
20 May 1987. However, he is still a partner in
in the business.
As to this matter the Authority said that,
notwithstanding the fact that Sotomayor was not then engaged
in the licensed business, that did not satisfy the Authority
that past, present and future efforts of the licensee to
avoid further offences were satisfactory. It noted that it
was an improvement that Sotomayor was not then in charge of
the premises and that under-age persons no longer served
liquor to customers.
(2) The purpose of the power to cancel is the
protection of the public, not to punish. The Authority
accepted that approach in its reasons for decisions but
added that the seriousness of the particular offences had to
be considered as relevant both to the deterrent aspect and
the likelihood that if Sotomayor once more assumed control
of the licensed business similar offences could happen.
(3) The next submission was that cancellation of the
licence would impose undue hardship upon the other partners
by the operation of s.43E which imposes restrictions on the
transfer of the licence and the issue of a new licence.
(4) The business had an approximate turnover of about
$100,000 per month, as to which 30-35 percent came from the
sale of liquor. The submission was that the loss of the
liquor licence would have a very severe effect upon the
turnover of the business and indeed would break the business
financially. The Authority accepted that considerable loss
would follow but held that if a licensee exposes the licence
to cancellation by offending more than once, particularly if
it is in a grave respect, hardship cannot be given decisive
weight.
(5) Reliance was also placed upon the undertakings
which I have referred to above. They were said to overcome
the Authority's comment that the improvement in removing
Sotomayor from the conduct of the business could have been
improved further by expelling him from the partnership.
(6) Reference was also made to the fact that the
partners were labourers from Chile who had worked hard to
purchase the business; that the offences had been committed
in circumstances caused by the non-attendance of a salaried
member of staff on the relevant day; that action had been
taken subsequently to prevent recurrences of that sort of
problem and the likelihood of no recurrence.
(7) The Authority had placed too much weight upon the
deterrent aspect of cancelling the licence. In the course
of its reasons it said that the seriousness of the
particular offences must be considered as relevant to the
deterrent aspect.
(8) The child Rebecca Sotomayor has not subsequently
been permitted to sell liquor.
(9) It is now a long time since the offences were committed
in March 1987 and there have been no further offences.

33. It is to be noted in relation to this last submission that, the appeal having been instituted by Notice of Appeal dated 21 July 1988, on 22 July 1988 Miles C.J. stayed the execution of the order for cancellation until the determination of the appeal.

34. The respondent made a number of contrary submissions in respect of the exercise of the discretion. It was submitted that the first conviction relating to the child Hammond was, in all the circumstances, of sufficient gravity to warrant cancellation of the appellants' licence. Hammond was aged 14 years 11 months at the date of the offence. Sotomayor admitted that Hammond appeared under age. No identification was sought or offered. Sotomayor was aware of the licensee's obligations and of the proper procedures to avoid offences of selling liquor to under-age persons. When first questioned he did not deny that he served Hammond, nor did he state that he believed the liquor to have been stolen. He pleaded guilty to the charge after obtaining legal advice.

35. A number of other submissions were put on behalf of the respondent and it was argued that the following matters weighed the scales firmly in favour of dismissing the appeal and upholding the cancellation of the licence. The matters relied upon were the gravity per se of breaches of s.80; the serious social problem of under-age drinking; the absence of any defences under s.80(2) to any of the offences; the ages of the young persons involved; the fact that on no occasion was identification sought; Sotomayor's awareness of his obligations and the proper procedures to avoid offences of this nature; all licensees having been advised fully of their obligations, the licensees not having asserted that they were or any of them was uninformed about or misunderstood their respective obligations under the Act; the conviction for the first offence and the obvious need to avoid the partnership's licence being put at risk subsequent to that conviction; the circumstances of the second and third convictions, including that a 12 year old girl was expected accurately to assess the age of customers and refuse service to those she ought to refuse service to; and the circumstance that it was not the first occasion on which she had served in the shop, giving rise to the inference that there had been a risk on other occasions that she would sell to persons under age, although innocently.

36. Finally it was submitted on behalf of the respondent that the Authority took into account all the relevant factors, including those militating against cancellation, and had properly exercised its discretion.

37. I think there is much weight in the respondent's submission that the first conviction should have been held to be of sufficient gravity to warrant cancellation.

38. Having considered all the relevant factors both for and against cancellation, I am firmly of the view that cancellation is the appropriate decision. The circumstances of the three convictions are so serious that the discretion should be exercised in favour of that course.

39. The appeal is dismissed with costs. The order of Miles C.J. made on 22 July 1988 is discharged.