PARTIES:	NELSON, Dennis
					v

		JEFFREY, Roger John

TITLE OF COURT:	SUPREME COURT OF THE 			NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT OF THE 			NORTHERN TERRITORY 				EXERCISING TERRITORY 			JURISDICTION

FILE NO:	61 of 1996

DELIVERED:	Alice Springs, 2 May 1997

HEARING DATES:	22 April 1997

JUDGMENT OF:	MARTIN CJ

CATCHWORDS:

Criminal law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Appeal by convicted person - Application to reduce sentence - No undue weight given to prior convictions.

Liquor Act (NT) 1978, s75(6).

REPRESENTATION:

Counsel:
	Appellant:		Mr D Bamber
	Respondent:	Mr M Fox

Solicitors:

	Appellant: 		CAALAS
	Respondent:	DPP

Judgment category classification:	C
Judgment ID Number:	mar97021
Number of pages:	9

mar97021

IN THE SUPREME COURT
OF THE NORTHERN 
TERRITORY OF AUSTRALIA
AT ALICE SPRINGS

No. 61 of 1996

		BETWEEN:

		DENNIS NELSON
			Appellant

		AND:

					ROGER JOHN JEFFREY
						Respondent

CORAM:	MARTIN CJ.

REASONS FOR JUDGMENT

(Delivered 2 May 1997)

	This is an appeal against a sentence of seven days imprisonment imposed on the appellant on 27 August 1996, for the offence of having liquor under his control in a restricted area on 14 October 1995, contrary to s75(b) of the Liquor Act (NT) 1978.  The area concerned was described as “Papunya Restricted Area” which, on the facts and circumstances known to me, would involve the community of Papunya and a surrounding area, the precise limits of which are unknown to me.

	The grounds of appeal are:

(a)	That the said sentence imposed by the learned Stipendiary Magistrate was in all the circumstances manifestly excessive.

(b)	That the learned Stipendiary Magistrate gave undue weight to the prior convictions of the Appellant when sentencing him.

(c)	That the learned Stipendiary Magistrate imposed a sentence of imprisonment which was not proportional to the objective circumstances of the offence.

(d)	That the disparity between the sentence imposed on the Appellant and his co-offenders is such as to leave the Appellant with a justifiable sense of grievance.

	The maximum penalty as prescribed by s124 of the Liquor Act for a first offence is $1,000, or imprisonment for six months, or, for a second or subsequent offence, $2000 or twelve months imprisonment.  The appellant fell into the latter category.

	A further charge that the appellant had at the same time consumed liquor in the restricted area was withdrawn upon his entering his plea of guilty to the control count.  He spent two days in prison under the sentence until released on bail after lodging the Notice of Appeal.

	The admitted facts are that at about 4.20 in the afternoon on 14 October, the appellant with two co-offenders were drinking Moselle in the bush on the western outskirts of Papunya.  They were sighted by police on patrol.  The defendant and the others laid down attempting to hide, but the police went up to them and asked who owned the wine in, what is called the “bladder”, nearby.  The three said that the wine was given to them by someone travelling through Papunya to Kintore.  They were all arrested and subsequently bailed.  As to the co-offenders, one with no prior convictions was convicted on the same charge and fined $200, and the other, the appellant’s wife, was also convicted of controlling liquor in a restricted area and fined $300.  Both have also been charged with consuming liquor within the restricted area, and in respect of those matters they were convicted without penalty.  The appellant’s significant record of prior convictions for like offences sets him apart from the co-offenders and sets to one side any argument that he has a justifiable sense of grievance because they were dealt with more leniently than he was.  I say he was dealt with leniently bearing in mind his record of prior convictions.

	It is as well to turn to those now.  Leaving aside offences which were not drink and alcohol related, the following appears:

October 1984		Driving under the influence - convicted and fined.

December 1985		Bring/control/consume liquor in a restricted area -
without conviction - 12 months good behaviour bond.

April 1988		Exceed .08 convicted and fined.

January 1989		Control liquor in a restricted area - convicted and
				fined $200

14 November 1991	Drive under the influence - convicted and fined.

May 1992		Control liquor in a restricted area - convicted and 				fined.

February 1993		Bring liquor into a restricted area - convicted and
				fined.

June 1994		Bring liquor into a restricted area - convicted and
				fined, and drive whilst exceeding .08 - convicted and
				fined.

August 1995		Control liquor in a restricted area - convicted and
				sentenced to seven days imprisonment.

	The other offences (or most of them) are of a nature indicative that the appellant abused the use of alcohol involving offences such as resisting arrest, threatening behaviour, disorderly behaviour, assaults and disturbing public peace.  It will be noted that although it is not known when the offences occurred, for which he was convicted and dealt with in August 1995, this offending took place only a little over two months thereafter, and during one month of that period (less any remission to which he was entitled) he had been in gaol for the seven days imprisonment on the control liquor conviction, and other sentences to imprisonment imposed at the same time.  

	As to his other personal circumstances, the appellant was said to be married and to have had two children (one grown up).  He was said to be employed at Papunya at what I take to be CDEP work, earing $300 a fortnight.  The evidence called on his behalf from Pastor Worst pointed clearly to his having a drinking problem, although he did have an association with the church.  There was no suggestion in the evidence that the appellant had in any way sought to overcome his problems with alcohol.  

	Counsel for the appellant before the Court of Summary Jurisdiction sought to minimise his involvement on the basis that since the charge of consuming liquor had not been pressed, that put his client merely with the others who were consuming the liquor, and taking into account all the circumstances, it was suggested that his Worship could make an order for community service work.  I note from his record that he had not been previously ordered to do such work, but that he had been given the opportunity of a suspended prison sentence in 1993 (involving assaults, disorderly behaviour and the like) upon his entering into a bond to be of good behaviour for two years, including a condition that he not consume alcohol during that time.  That bond was breached, and in June 1994 he suffered a period of twenty one days imprisonment as a result.  He had therefore had the opportunity of conditional release which he had not successfully completed.

	However, his Worship did obtain a report by which he was informed that community service work was available.  The prosecutor’s submissions were that the appellant should have known better than to be in control of the liquor and to stay with others whilst they were drinking it.  He was said to have been not far from town, and he could have easily disassociated himself from them.  The prosecutor added, and it was not disputed, that the main problem in Papunya and district was drink related and he submitted that an example should be made of those who are caught to set an example to the community.  For the appellant to have come before the Court, and then be let go, would not be setting such an example that “we”, meaning, I think, the police, would want to convey.  Attention was drawn to his charges already given and his prior record.  His Worship posed for himself the question as to whether the appellant should be sent to gaol to set an example to others, or should he be subjected to a lesser punishment.

	There was another issue which arose in the course of submissions and that went to the weight to be given to the appellant’s guilty plea to the control count.  The consume charge was withdrawn.  It appears that it had been indicated that both charges were to be defended, and that the matter had been adjourned to the day upon which it was dealt with at Papunya in that expectation.  The prosecutor had arranged for a policeman to be brought to Papunya from Groote Eylandt at a cost estimated at $1,000, but by the time the proceedings against the appellant actually got under way, it had been agreed that he would plead guilty to the control count, and that the consume liquor charge would be withdrawn.  How that all arose does not clearly appear, and this Court is in no position to assess the weight which ought to be given to the plea of guilty.  It was certainly not entered at the earliest possible time, but rather at the latest.  On the other hand, a charge of consuming liquor was withdrawn.  In all the circumstances, it does not appear to me that much weight should have been given to the guilty plea.

	The sentence of seven days imprisonment was the same as that imposed in August 1995 for the same offence, and as indicated earlier, this offending occurred not long thereafter.  Clearly, notwithstanding all the trouble the appellant had been in in relation to alcohol abuse, and in particular the convictions and sentences imposed for having alcohol in a restricted area, he had learnt nothing.  No reason was advanced for his having remained with the others while they were drinking, and it was not disputed that he could have simply got up and walked away.  He pleaded guilty to control of the liquor, which to my mind indicates he had some power of management over it.  There was no suggestion that he endeavoured to exercise that power by removing it, or stopping the others from drinking it, or divorcing himself from their activities by leaving them to it.  

	The provisions of the Liquor Act relating to restricted areas, clearly envisage the involvement of the community within the area in the decision making process.  It is likely that the application to have the area so declared was made by, or at the instigation of, that community.  Whether the mere fact of having a restricted area declared is an effective way of protecting members of the community from the consequences of alcohol abuse, such as waste of resources, disruption and violence, I do not know.  But, it is important that the Courts recognize, as did his Worship, that if a community seeks the protection which having an area declared as a restricted area might bring, then those who offend against the wishes of the community in that regard ought to be punished.  One object of the criminal justice system is to protect the community, and that assumes even greater importance when it is the community itself which has sought the specific from of protection provided for under the Liquor Act.

	It cannot be upheld that the sentence of seven days imprisonment was manifestly excessive.  The learned Magistrate did not give undue weight to the appellant’s prior convictions, the sentence of imprisonment for the period of the sentence was entirely justified.

	The appeal is dismissed.
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