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Intervention lets Territory grog runners walk free

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.

15
  • 1
    shepherdmarilyn
    Posted Tuesday, 3 November 2009 at 2:44 pm | Permalink

    Well Bob, you are dealing with people who think it is fair to lock up victims fleeing persecution and death and reward the persecutors with foreign aid.

  • 2
    stephen martin
    Posted Tuesday, 3 November 2009 at 2:54 pm | Permalink

    Grog runners used to forfeit their motor vehicles as well. Doesn’t this still apply?

  • 3
    Bob Gosford
    Posted Tuesday, 3 November 2009 at 3:48 pm | Permalink

    Stephen - yes - and in this case the vehicle was seized - if I get the opportunity I’ll look more closely at some other very interesting vehicle seizures in the Wadeye area of late involving vehicles registered to local organisations that receive large amounts of grant and other funding from the NT & Federal governments

  • 4
    Bob Durnan
    Posted Tuesday, 3 November 2009 at 4:45 pm | Permalink

    Gosford makes a good point here. The joint Commonwealth/NT legislation to prevent and sanction grog running clearly needs amending to make it effective.
    The legislation applying to illegal transport and dealing of other psycho-active substances (cannabis, kava, speed etc) in prescribed areas also needs tightening.

    The confiscation of vehicles is not a good mechanism to rely on, as grog and drug runners often borrow or steal vehicles belonging to innocent third parties. Recently at some communities there has been a trend to dupe or compel female relatives to drive such vehicles as a further buffer to harsh penalties applying to the real offenders.

    Police and magistrates are often placed in invidious positions when trying to deal with these cases under the present legislation, and police sometimes seem to choose to press lesser charges under the Commonwealth provisions and thus risk providing unintended encouragement to the main offenders, rather than causing innocent parties to lose their vehicles.

  • 5
    james mcdonald
    Posted Tuesday, 3 November 2009 at 8:13 pm | Permalink

    Instead of making special grog laws that need constant maintenance, why not just add a schedule to the drug trafficking laws to include grog in prescribed areas? In those areas it’s the same as heroin in principle, isn’t it?

  • 6
    Bob Gosford
    Posted Tuesday, 3 November 2009 at 10:03 pm | Permalink

    Good to hear that Bob D and I can agree on something - though I’ve no idea how he proposes, other than (maybe) semi-permanent roadblocks to give effect to “…legislation applying to illegal transport and dealing of other psycho-active substances (cannabis, kava, speed etc) in prescribed areas also needs tightening.” - as Dr John Howard (surely not!!) said at the ABC News report here (http://www.abc.net.au/news/stories/2009/11/03/2731642.htm) earlier today:

    Dr John Howard from the National Cannabis Prevention Centre is one of the speakers at a national drug and alcohol conference being held in Darwin today.

    He says a Federal Government report showing that alcohol and drug incidents in Territory communities have risen since the intervention highlights that simple bans are not dealing with the problem…”But I think that in many places where we allow a sense of hopelessness, or it’s all too hard, to occur, why wouldn’t you want to medicate yourself somehow to get through a day.”

    I talked further about this over at The Northern Myth post earlier today. And as Bob and anyone else with experience in the centre and elsewhere in the NT would know - roadblocks etc can be pretty ineffective in stopping grog, ganja, kava etc

  • 7
    Bob Durnan
    Posted Tuesday, 3 November 2009 at 10:40 pm | Permalink

    Bob G
    Plenty of responsible parents & youth workers round here would be very glad to see the police empowered to use sniffer dogs at random road blocks or house searches, particularly as school-age kids as young as 12 & 13 are often getting access to drugs.
    Dr Howard should be reminded that when you increase police numbers and police powers in situations where these have been deficient & criminal activities have been high, then you are pretty well guaranteed to go through a period in which you uncover more incidents before you start to have a preventative impact.
    Bob D

  • 8
    Bob Gosford
    Posted Tuesday, 3 November 2009 at 11:18 pm | Permalink

    Bob D - the NT Police already use sniffer dogs on remote patrols - at airports and on roadblocks - and in the last week or so I heard of them being on a road in central Arnhem Land - but why they don’t use them in the centre is most likely because of (relatively) low rates of ganja & other unlawful drug use & abuse there.

    As in all these matters there is an important economic issue here - why use an expensive tool to crack what is a relatively small nut - I’ve just spent a month in Arnhem land and I have formed the firm view that there is far less ganja and similar drug use in central Australian than there is in the Top End.

    And are you being disingenuous in suggesting tht the NT Police don’t have these powers in relation to dog and house etc searches? Of course they do. But, these powers, as of course they should be, are subject to the constraints and protections of the criminal law.

    And, as in all things, there is also a question about what the “optimum” number of police. Who decides how many police go where? And why? Do we really need all of the remote townships in the NT swamped with Police officers twiddling their thumbs?

  • 9
    Bob Durnan
    Posted Tuesday, 3 November 2009 at 11:39 pm | Permalink

    I said “random”. At present they don’t have this power. They are only able to use the s-dogs when they have information that a particular car or person may be carrying dope. The only random checks they are allowed to make for substances are the alcohol breath tests.

  • 10
    Deborah King
    Posted Wednesday, 4 November 2009 at 8:02 am | Permalink

    I think you are both missing the point. Controlling the supply of alcohol does not stop people from drinking - it only creates a whole heap of other harms through driving the problem underground. What society that claims to value human rights could see it as appropriate to criminalise behaviour that in other parts of Australia and the world is perfectly legal (ie carrying alcohol in a car)?

    While I sympathise with communities that want the problems of alcohol removed, this will not be achieved through simplistic law enforcement approaches focused on supply control. The only way to really achieve a change in the level of alcohol use is to focus on demand reduction - that is, treatment options in the short term and economic and social development in the longer term.

    Supply control approaches in remote communities are increasing harm - both health related harms as people seek out stronger forms of alcohol or binge drink when the opportunity presents itself - and personal harms as domestic and sexual violence is increased.

  • 11
    james mcdonald
    Posted Wednesday, 4 November 2009 at 9:14 am | Permalink

    Deborah: “Controlling the supply of alcohol does not stop people from drinking”

    Yes it does, when the community in that area requests the dry status and supports it. That makes all the difference from an unwanted nanny state being imposed by a distant government.

    For the most part, enforcement of dry areas has been so successful that there are now more Aboriginal than non-Aboriginal teetotallers per capita in Australia. This, despite the handicap of tens of thousands of years without alcohol leading to an apparent increased susceptibility to the stuff, is a major achievement deserving the full support of the law — where the local community requests it.

  • 12
    Bob Durnan
    Posted Wednesday, 4 November 2009 at 11:12 am | Permalink

    Deborah
    There is now overwhelming evidence, international & from Australian Aboriginal communities - that supply control and reduction is the most important element in reducing alcohol-related harms. Of course, this works better if treatment and education and longer term social improvements are also available. But it is also the best available solution where these things are in short supply. If you don’t believe me, see the WHO overview papers, especially those by Maggie Brady of the ANU, and the work of several researchers at the Curtin University National Drug Research Institute. Their papers will supply you with links to large scale international studies which support my contention.
    Looking at it another way: to get kids educated enough to benefit from these other solutions, they need to be able to live in homes and neighbourhoods which aren’t overwhelmed on a daily/nightly basis by the violence and chaos associated with continual excessive drinking and the violence and dysfunctions associated with it. Policing and supply reduction are the only available means for them to have the space in which to become educated and healthy in many of these neighbourhoods.
    Bob D

  • 13
    Craig
    Posted Wednesday, 4 November 2009 at 1:59 pm | Permalink

    I know this woman personally and also know that on many occassions her nephews have loaded her bags on flights with grog and pot and she was been threatened with violence by the family if she did not do it. She is a well respected woman in the community. She is picked out to take the rap because she does do lots of good work, so other family members think she is less lickly to get caught and that she can handle the authorities.

    She cared for her nephew who was very ill. He had downsyndrome and died 18 months ago at the age of 13 from peronititis. Treatemnt had to be withdrawn to allow this boy to die. none of the men in the family would make the decision to stop his suffering, scared they would be seen as responsible for his death. They made her make the decision. She told me she knew what had to be done and knew what would happen to her once he died.

    Thankfully we avoided her having to make the decision as between RDH and other factorsd, he was allowed to pass and she did not have to be seen to have made the call…. Read more

    She also cares for her violent husband who has a mental illness. She is also one of the main people in the community who interprets on court days and is sort after by the police and defence.

    She is not a criminal. She is not a grog runner. She does not sell alcohol in restricted area’s for money. She does not bring alcohol into restricted area’s. She is the scape goat for other family members. I have taken this woman to conferrences in Sydney for national seminars where she was an invited guest, as she cared for a very ill boy in one of the more remote communities in Australia. She represented one of the most marginalised disability carers in the country.

    She has always held down a job and has worked hard in her community and has supported her family and others when others in the community have failed.

    You should remove her from your blog. It is uncalled for and does not represent the true facts about this person or circumstances.

  • 14
    Craig
    Posted Wednesday, 4 November 2009 at 2:04 pm | Permalink

    At least remove Marie Nudjulu’s name from your blog. That is not called for.

  • 15
    Deborah King
    Posted Wednesday, 4 November 2009 at 6:24 pm | Permalink

    Thanks for the response Bob D. I have looked for the documents you refer to on the Curtin Uni database and the CAEPR website at ANU but have not been able to locate them. I have therefore emailed Maggie Brady for copies of the relevant documents. As a researcher myself in this area I do not agree that there is “overwhelming evidence” as you claim but I am willing to examine what evidence there is. My recollection from the research I have read is that price increases (through increased taxation) is a proven effective strategy for reducing demand rather than supply control.

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