NGULKURR V O'BRIEN

In t• he Supreme Court of the Northern Territory of Australia Kearney J.
19 September; 28 November 1989, at Darwin

APPEAL - Justices - severity of sentence - offence of drinking methylated spirits - minor nature of offence
- not habitual offender - appropriate punishment in lower range of sentencing - use of statistics to determine usual range - Poisons and Dangerous Drugs Act, s.61

SENTENCING - principles of sentencing - alcoholism - imprisonment not to be imposed for curative purpose - when conditional bond appropriate for alcoholic

Cases applied:
Gollan v Samuels [1973] 6 SASR 452
Nash v Whitford [1972] 2 SASR 338

Cases not followed:
R v Moylan (1969) 3 All ER 783

Counsel for appellant Solicitors for appellant

Counsel for respondent Solicitors for respondent

S. Cox NAALAS

P. Thomas Solicitor for the Northern Territory

kea890213
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA
No.440 of 1989

IN THE MATTER OF the Justices Act

AND IN THE MATTER OF an
appeal against a sentence imposed by the Court of Summary Jurisdiction at Darwin
BETWEEN:
MAURICE NGULKURR
Appellant AND:
PATRICK O'BRIEN
Respondent

CORAM:	Kearney J.

REASONS FOR DECISION
(delivered 28 November 1989)

This is an appeal against the severity of a sentence imposed by the Court of Summary Jurisdiction in Darwin on 29 June.

The background to the appeal is as follows. The appellant pleaded guilty before the Court to a charge  that on 15 May he had drunk methylated spirits.  This is an offence under s.61 of the Poisons and Dangerous Drugs Act;

it carries a maximum punishment of three months imprisonment. The facts to which the appellant admitted were as follows:

At about 4.40pm on Monday 15 May 1989 he was standing on the nature strip in Geranium Street opposite the Catholic Mission. He tipped out the contents of a 750ml can of Victoria Bitter beer, which was tinged with the colour of purple dye. When asked by Police what he had been tipping out he replied: 'Methylated spirits". When asked if he had been drinking methylated spirits, he said: 'Yes, sir'. The defendant was then asked to open his mouth and show his tongue; it was tinged with purple. He was then arrested and conveyed to the Berrimah Police Centre where he was later charged and bailed.

Before the learned Magistrate, defence counsel urged in mitigation of punishment that the appellant was 49 years of age, a married man from Port Keats; and that his offence was "relatively minor", though the practice of drinking   methylated   spirits  was  tltQ	be very much discouraged". The appellant's prior record disclosed four prior convictions, in 1981, 1983 and 1987: the first for taking liquor into a restricted area, the others for consuming liquor in restricted areas.

Defence counsel sought a conditional dismissal of the charge under s.4(1) of the Criminal Law (Conditional Release of Offenders) Act, a discharge on a good behaviour bond, or a conditional release under s.5 of the Act.

The learned Magistrate noted that "the commission of this offence is fairly unusual in our community today". His Worship held:-

"The attitude of the courts throughout the years has always been one of basically imprisoning people who drink methylated spirits. Usually, I suppose, on the humanitarian ground of letting the person dry out a bit, but also, I suspect, to try and deter the commission of this offence, because in the manufacture of methylated spirits there is often included, because of  the distilling process, a certain quantity of poison, and that poison can be fatal in certain circumstances.
...there is a risk and a very real risk of a quantity of very lethal poison being included in the methylated spirits, and that's where the real problem comes. That's why [the consumption] has always been legislated against.... So in all the circumstances, even though you haven't got much in the way of priors for your lifetime, you'll be convicted and sentenced to be imprisoned and kept to hard labour for a period of 14 days."

The appellant relied on two grounds in his Notice of Appeal: that the sentence was manifestly excessive, and that his Worship had erred in law in imposing a sentence of imprisonment.

(1)	The first ground - sentence manifestly excessive

Ms Cox of counsel for the appellant submitted that the sentence was manifestly excessive because effectively this was the appellant's first conviction for this offence,

there were no aggravating circumstances, he had cooperated fully with the Police and pleaded guilty, his prior offences were minimal and the offence was not prevalent.

I note that a sentence of 14 days imprisonment appears from  the available limited PROMIS statistics to be in the upper range of sentencing for this offence in Darwin. In the last 32 months 23 persons have faced 28 charges of drinking methylated spirits. Apart from the appellant  and one other  (whose prior record is unknown to me), sentences of immediate imprisonment were imposed only on recidivist methylated spirits drinkers. It may be concluded from these statistics that in recent times the courts in Darwin do not usually imprison persons with no prior record as drinkers of methylated spirits.

( 2)	The second ground - error of law

Ms Cox also submitted that to impose a sentence of imprisonment on a person so that he might "dry out", involved error in the application of the principles of sentencing. She submitted that the purpose of imprisonment was punishment for an offence; it was not to be imposed for curative purposes. I consider that his Worship imposed the sentence both for curative purposes and as a measure of deterrence. Ms Cox referred to .three authorities.

In Nash v Whitford (1972) 2 SASR 333 Walters J held

that it was improper for a

court	to	increase	a	sentence

beyond	that	which	was

appropriate, simply because a long

term of imprisonment had a "chance to dry out".

possible	curative	effect	a

A different approach had been manifest in the views of the Court of Appeal in R v Moylan (1969) 3 All E.R. 783. At p.785 the Court held that within the limits of a proper sentence for the offence "it may be perfectly proper to increase the sentence in order to enable a cure to be undertaken whilst the accused is in prison". In England it seems to be accepted that a sentence of imprisonment may be imposed in order to provide an opportunity for treatment, the sentence being of such length as to enable the treatment to take place, though always subject to the limiting factor that it must not be disproportionate to the facts of the case. That is to say, the sentence must still be within the normal' range of sentences for the offence, bearing in mind the particular circumstances of its commission. In the result a sentence may be increased for curative purposes, but it must not be excessive in relation to the actual offence.

Bright J in Gollan v Samuels (1973) 6 SASR 452 discussed the problems in sentencing for drunkenness and appeared to consider that sending alcoholics to prison as a

. .

cure for their alcoholism was no longer apposite in Australia. The case involved a sentence of six weeks imprisonment imposed on an habitual offender for being drunk in a public place. Bright J referred at p.453 to two recent reports by Committees of Inquiry relating to the offence of drunkenness and said at p.454:-

"Prisons are sometimes regarded as 'drying out stations'. They may have this effect but I cannot regard this effect as justifying the sentence."

I respectfully agree.

I consider that the approach apparently regarded as proper in England is no longer acceptable in Australia; prisons should not be used as "drying out" stations. If a person is considered to be an alcoholic, the appropriate disposition in circumstances such as those of this offender and this offence, is the requirement that he enter into a bond in which he undertakes to undergo treatment in one of the existing treatment centres in Darwin for alcoholism.

There remains the question of the practical disposition of this appeal. I note that the appellant has served four days of his sentence. The nature of his offence and his background are such that his appropriate punishment should be in the lower range of sentencing for this offence. A bond is, however, no longer apposite in view of the period

•	...    •	,!

served.	In accordance with	the	foregoing	I	uphold	both grounds	of	appeal, allow the appeal, quash the sentence of
14 days imprisonment, and substitute	as	the	sentence	the
four	days	imprisonment	which	the	appellant	has already served.

Orders accordingly.