Anti-alcohol provisions introduced under the Northern Territory intervention have copped a stern dressing down from a Territory magistrate in a recent grog-running case.
For some time, Crikey has been aware that several NT Magistrates have been less than pleased that their sentencing options with regard to grog-running — particularly for serious and repeat offenders — have been seriously compromised by the supposedly tougher regime instituted under the Northern Territory National Emergency Response by Howard minister Mal Brough and maintained by current incumbent Jenny Macklin.
Three weeks ago defendant Marie Nudjulu stood before court at the troubled community of Wadeye charged with several “prescribed area” alcohol offences.
According to evidence documented in the transcript of proceedings against Nudjulu:
… the defendant’s vehicle was stopped by police … the search of the vehicle apprehended nine bottles of spirits and 29 unopened 375 ml of cans of Victoria Beer on the floor at the defendant’s feet.
When asked who owned the unopened 29 cans of 375ml of beer the defendant replied, “The VB is mine, I bought it for myself”.
Nudjulu had previous convictions for possession of alcohol contrary to the Liquor Act and was subject to a suspended sentence. This meant that, in ordinary circumstances under the previous regime, she would be a prime candidate for a custodial sentence.
But, as Magistrate Melanie Little told the court:
… this just demonstrates how this legislation is not completely — look at this lady’s record, it’s inevitable she would have gone to jail for this offence, absolutely inevitable, $2200 maximum penalty now. I wonder — I don’t understand Canberra, it just totally bewilders me …
Look at the record, look at it. How many, look, one, two — this is now her fourth bring liquor and she was on a suspended sentence. I wonder — it just — it seems to have accelerated and the message is out, isn’t it, there’s absolutely no deterrence any more.
And in sentencing Nudjulu, Magistrate Little made her views on the practical effects of the NTNER Act modifications to the NT Liquor Act clear as possible:
We used to call them restricted areas and the penalties were very significant, Ms Nudjulu, and as I mentioned had they been — under the old penalties and old regime you would be looking at a period of imprisonment today. The maximum penalty today is $2200 and I take that into account … This offence is not punishable by imprisonment so it’s not a breaching offence. I take into account that this now the fourth bring liquor, plus you’ve got other offences on your record. So it’s clear to me that you’re not taking any notice whatsoever of the rules, Ms Nudjulu.
The primary anti-grog measures introduced by minister Brough were contained in section 12 of the NTNER Act — which replaced the previous regime in section 75 of the NT’s Liquor Act of offences and penalties relating to “restricted areas” with a regime relating to “prescribed areas”. Brough’s “prescribed areas” expanded the area subject to the alcohol bans by several orders of magnitude to include all Aboriginal freehold land in the NT — about 42% of the Territory landmass.
Before September 2007 a prison sentence was available as a sentencing option for a Magistrate dealing with a person convicted of a basic “restricted area” offence under the Liquor Act — an option increasingly attractive in respect of repeat or particularly serious offenders.
Since then, under the “prescribed area” provisions of the NTNER-modified Liquor Act, the maximum penalty available is a fine.
A prison sentence can now only be imposed for an aggravated version of the basic offence that relates to “transporting” more than 1350 millilitres of pure alcohol with the intention to supply.
The pre-existing NT legislation, at section 124A, always allowed (and still does) for police officers to state or “aver” that seized grog was alcohol. But there is no equivalent averment provision in the NTNER Act in respect of the 1350 millilitres of pure alcohol situation.
The consequence of this is that if police seize enough grog to trigger an aggravated offence and charge accordingly, they will have to chemically analyse each item if the defendant opts to take the case to a hearing.
Crikey understands that the NT police forensic lab in Darwin is not geared to conducting such testing, and would have to send the seized alcohol interstate for testing.
The practical result of this snafu is that the vast majority of charges — including those that would clearly be classed as aggravated “grog-running” offences — are now processed by the courts as basic “prescribed area” offences, and the only sentencing option is a fine.
Canberra — weak as piss on grog and grog runners in the NT.