COURT
IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA
Kearney J.(1)

CWDS
  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

HRNG
DARWIN
#DATE 28:11:1989
  Counsel for appellant :     S. Cox
  Solicitors for appellant :  NAALAS
  Counsel for respondent :    P. Thomas
  Solicitors for respondent : Solicitor for the
                              Northern Territory

ORDER
  Appeal allowed.

JUDGE1
  This is an appeal against the severity of a sentence imposed by the Court of
Summary Jurisdiction in Darwin on 29 June.
2.  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.
3.  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 "to 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.
4.  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.
5.  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."
6.  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
7.  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.
8.  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
9.  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 possible curative effect - a "chance to dry out".
10.  A different approach had been manifest in the views of the Court of
Appeal in R v Moylan (1969) 3 All ER 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.
11.  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.
12.  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.
13.  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.
14.  Orders accordingly.