Minor v Allen [2006] NTSC 58

PARTIES: MINOR, Cassandra

v

ALLEN, Robert James

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: APPEAL FROM THE COURT OF SUMMARY JURISDICTION EXERCISING TERRITORY JURISDICTION

FILE NO: JA 6 of 2006 (20323911)

DELIVERED: 3 August 2006

HEARING DATES: 20 July 2006

JUDGMENT OF: Olsson AJ

APPEAL FROM: Court of Summary Jurisdiction sentence, Ms M Little SM, 20 February 2006

CATCHWORDS:

APPEAL – JUSTICES

Appeal against sentence – whether sentence manifestly excessive – whether sufficient weight given to offender’s young age, plea of guilty and limited antecedents – policy of legislation – prevalent offence – prior offence under the Liquor Act - sentence not manifestly excessive –
Appeal dismissed

House v The King (1936) 55 CLR 499, followed
Cranssen v The King (1936) 55 CLR 509, followed
Driver v The Queen (1989)97 FLR 23, followed
Liddy v The Queen [2005] NTCCA 8, followed
Nunn v Calma [2005] NTSC 54, distinguished
R v Egan SCC 20529705, 10 February 2006, not followed

R v Mills [1998] 4 VR 235, not followed

Justices Act (NT)
Liquor Act (NT), s 75(1)(a)

REPRESENTATION:

Counsel:
Appellant: S Kenny
Respondent: N Rogers

Solicitors:
Appellant: Central Australian Aboriginal Legal Aid Service

Respondent: Office of the Director of Public Prosecutions

Judgment category classification: B
Judgment ID Number: Ols0607
Number of pages: 5

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

Minor v Allen [2006] NTSC 58
JA 6 of 2006 (20323911)

IN THE MATTER OF the Justices Act

AND IN THE MATTER OF an appeal against sentence handed down in the Court of Summary Jurisdiction at Darwin

BETWEEN:

MINOR, Cassandra
Appellant

AND:

ALLEN, Robert James
Respondent

CORAM: OLSSON AJ

REASONS FOR JUDGMENT

Introduction

1. This is an appeal against a sentence imposed by a stipendiary magistrate consequent upon the appellant entering a plea of guilty to a charge that, on 3 October 2003, she brought liquor (in the form of 11 two litre casks of Stanley tawny port) into a restricted area, namely the Papunya Restricted Area, contrary to s75(1)(a) of the Liquor Act.

2. A conviction was recorded against her on 20 February 2006 and she was sentenced to imprisonment for one month and 14 days from 17 February 2006, to be suspended after serving 10 days from that date, with an operative period of 12 months.

3. She complains that the sentence imposed was manifestly excessive in the circumstances.

The relevant facts

4. On 3 October 2003 the police stopped a Ford motor car driven by the appellant when it was about 800 metres inside the boundary of the Papunya Restricted Area. Upon searching the vehicle they found 11 two litre casks of tawny port.

5. The appellant told the police that the liquor had been purchased in Alice Springs and was being taken to Illi Illi Outstation for the purposes of her birthday party. The vehicle was seized and the appellant was charged with the above offence.

6. She appeared before the court on 3 July 2004 and pleaded guilty on that day. She was then 24 years of age and came before the court with only a limited antecedent record. She had been convicted on 18 December 2001 of consuming liquor within a restricted area and fined $120.

7. The learned magistrate called for a home detention assessment, primarily because of the appellant’s age and limited record. In the event, the assessment was that she was unsuitable for that type of disposition because of her living conditions and some uncertainty as to where she would be staying in the future.

8. It seems that, following her first appearance in July 2004, the appellant failed to answer to her bail and was brought before the court twice on warrants for her arrest. The learned magistrate considered that this situation also indicated unsuitability for home detention.

9. In imposing sentence the learned magistrate pointed out that a huge amount of tawny port was being brought into a restricted area by the appellant. She considered that a period of imprisonment was well warranted.

10. In arriving at an appropriate sentence the learned magistrate indicated that she specifically bore the following factors in mind:

• The appellant was still a relatively young person at the time of the offence, being then about 23 years of age;

• She was entitled to some discount for plea, although she originally pleaded not guilty and only entered her ultimate plea on an appointed hearing day;

• She only had a very limited prior record of offending;

• She had been living a traditional life in the aboriginal community at Papunya and would find it extremely difficult to spend any time in custody;

• She had already been in custody from 17th February 2006 and would be transferred to Darwin if actually required to serve in excess of 14 days.

11. On 20 February 2006 the learned magistrate also dealt with a second offence that had been committed by the appellant. This was an offence of drinking liquor whilst in the Papunya Restricted Area.

12. The learned magistrate was informed that, at about 3:15 p.m. on 17 February 2006, the appellant had been drinking liquor with other people in the Papunya Community. Police officers observed her walking behind the police station. When they approached her concerning another matter they observed a one litre plastic bottle containing approximately 200 millilitres of moselle. This was in the grass a short distance from her and she admitted that it was hers. When asked why she had alcohol in what was a restricted area, she merely responded: "I just started drinking now". It was conceded by counsel on her behalf that she was well aware that she should not have been drinking on the occasion question, but it was said that she had not personally brought liquor into the community.

13. In relation to the last mentioned offence, the learned magistrate placed the appellant on a good behaviour bond conditioned upon her not committing an offence against the Liquor Act during the 12 month period of its currency.

Issues arising in relation to the appeal

14. In essence, Mr Kenny of counsel for the appellant contended that the learned magistrate ought to have fully suspended the custodial sentence imposed, as a recognition of the young age of the appellant, her modest antecedents and her ultimate plea.

15. He argued that only passing reference had been made to the appellant's young age and that it did not appear that due regard had been given to the point articulated by Batt JA in R v Mills [1998] 4 VR 235 at 242, to the effect that, as a matter of principle, in the case of a youthful first offender rehabilitation is usually far more important than general deterrence and that such an offender is not to be sent to an adult prison if that can be avoided. I took Mr Kenny to seek to extrapolate that concept to a young adult offender who only has a very limited antecedent record. Reference was also made to a similar dictum of Southwood J in the course of his sentencing remarks in The Queen v Egan (Matter SCC 20529705, dated 10 February 2006, unreported).
16. Mr Kenny submitted that the prior offence of the appellant, albeit that it was also an offence under the Liquor Act, was of a minor nature and that a recorded offence of driving whilst unlicensed committed on 3 October 2003, that came before the Court on 16 March 2004, was totally irrelevant.

17. He further submitted that the learned magistrate appears to have given undue weight to the prevalence of the offence and the need to protect the community to the exclusion of powerful considerations arising from the young age of the appellant, her lack of substantial prior record and her plea. He pointed to my reasons published in the case of Nunn v Calma [2005] NTSC 54, where I made reference to the fact that sentencing statistics indicated that, in over 75% of cases, the penalty for liquor offences committed in restricted area was the imposition of a fine.

18. Let me say at once that I do not think that anything I said in Nunn v Calma is particularly relevant to the present matter. That case related to the bringing into a restricted area of some cans of beer for delivery to the offender's uncle, who was temporarily there and intended to take them to a location outside of that area. I assessed the circumstances of the offending as being towards the lower end of the scale of seriousness, there being no suggestion of sinister intention on the part of the offender (who was merely assisting his uncle) or any evidence of likelihood of the liquor being made available to anyone for consumption within the restricted area.

19. It must be said that the situation adverted to in Nunn v Calma stands in strong contrast with that in the present case. Here the offender deliberately brought in a very large amount of fortified wine (22 litres) with a deliberate intention that it be consumed by range of other people, albeit to celebrate her birthday. It was an exacerbating factor that this was a second breach by her of the Liquor Act. Certainly, the first offence was of a much lesser order of seriousness, but the appellant was well and truly on notice that consuming liquor in or bringing liquor into a restricted area was a criminal offence that would attract serious consequences. She had failed to take advantage of the leniency previously accorded her.

20. Moreover, she was not a first offender and the dictum that related to first offenders could scarcely be applied to her. Her knowing conduct, viewed objectively, inherently evidenced a high level of culpability. The large amount of fortified wine involved, obviously intended for consumption by a substantial number of other people, necessarily placed this at the high end of the scale of offending. It displayed a contumacious disregard of the policy of the legislation.

21. Further, within the concept referred to by Asche C J in Driver v The Queen (1989) 97 FLR 23 at 29, the learned magistrate was entitled to bear in mind both the offence of driving a vehicle while unlicensed committed on 3 October 2003 and the further offence under the Liquor Act committed on 17 February 2006 as being at least suggestive that considerable leniency to the appellant might well be misplaced. A very real question mark necessarily arose as to the appellant's rehabilitation at the time of sentencing.

22. Additionally, I remain quite unconvinced that the learned magistrate did not accord due weight to the implications of the relatively young age of the appellant. On the contrary, it is clear that she bore that aspect well in mind. As she well appreciated, the inherently serious nature of the offence mandated that the consideration of the relevant youth of the offender had to give way to considerations of the policy of the legislation and the factors of personal and general deterrence -- the more so having regard to the prior offence under the Liquor Act.

Conclusion

23. This Court can only be justified in interfering with the exercise of sentencing discretion on the basis discussed in authorities such as House v The King (1936) 55 CLR 499 at 504, Liddy v R [2005] NTCCA 8 and Cranssen v The King (1936) 55 CLR 509 at 519-520.

24. In this case I consider that the appellant has failed to demonstrate any error on the part of the learned magistrate. On the contrary, it seems to me that, having regard to the gravity of the offending and the apparently little progress towards rehabilitation, the sentence imposed was merciful. Regardless of age, offenders who knowingly and deliberately bring large quantities of liquor into restricted areas for consumption by others must normally anticipate a custodial sentence if they are detected.

25. Accordingly, this appeal must be dismissed.

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