The Law

Oct 22, 2008

Court day in Yuendumu – Part 1

The NT Magistrates Court rolled into Yuendumu for its bi-monthly visit late last week. Leading the 4 wheel-driven caravan was Stipendiary Magistrate John Birch, with an assortment of de

Bob Gosford — Likes birds and people, not necessarily in that order.

Bob Gosford

Likes birds and people, not necessarily in that order.

The NT Magistrates Court rolled into Yuendumu for its bi-monthly visit late last week. Leading the 4 wheel-driven caravan was Stipendiary Magistrate John Birch, with an assortment of defence lawyers, police prosecutors and staff from the Central Australian Aboriginal Family Legal service in tow. Add the eight members of the Yuendumu Mediation and Justice Group, local and regional NT Police and their ACPO (Aboriginal Community Police Officers) offsiders, probation officers and Court staff, defendants, family members and curious rubber-neckers and it was the best and biggest show to hit town all month.

Alice Springs-based Stipendiary Magistrate John Birch called us all to order just after 10 am in the run-down chambers of the now defunct Yuendumu Community Government Council. Her Royal Highness Elizabeth II smiled wanly from the wall over Magistrate Birch’s shoulder. A layer of red dust lies on any undisturbed surface.

Small groups of defendants and their family members gather under the meagre shade of straggly trees and shuffle forward to tell their story to the Aboriginal legal aid lawyers sitting with their piles of files at two card tables in the sun, working through their lists and on a good sunburn for their troubles. The lawyers and their clients have no private facilities and their all-too-brief instructions are taken hurriedly and in the full glare of the public and a hot sun beating down from a cloudless sky hazed by recent duststorms. A small pack of dogs pace restlessly outside the door to the Court, sniffing the legs of all who pass, waiting for their owners to emerge.

Magistrate Birch pushes the Court along at a steady pace unusual to any casual observer of NT Courts – no cuppa-tea breaks, no two-hour-long lunches – just a quick break early in the afternoon so that everyone can go outside for a smoke, a cuppa tea and a quick bite, then back to the fray.

And the list for the two days is long – 74 defendants facing a total of 252 charges – an average of almost 3.5 per defendant. The raw totals include 76 alcohol-related charges, 93 relating to use of a motor-vehicle, 39 charges (at least) arising from two days of September rioting at the nearby township of Willowra and a grab-bag of 44 assorted criminal charges.

The high number of alcohol-related matters is attributed, in part, to the success of the Yuendumu Magpies at the Central Australian Football League’s Grand Final in Alice Springs in late September and the temptation by their loyal fans to bring a few drinks home to celebrate a glorious victory. And these figures are bloated by the common practice of the NT Police known as ‘charging-up’.

“Charging-up” is typically used in relation to liquor and vehicle offences and ensures that if the facts fail on one charge, the police are sure to be able to fit the facts to another backup charge. With liquor-related offences most defendants were charged with the trifecta available to police under s. 75 of the NT’s Liquor Act of “bring liquor into”, “possess liquor” and “consume liquor” in a restricted area. Of particular note with this trifecta is that the charge of “bring liquor into a restricted area”, which is commonly viewed as equivalent to “grog-running” – when a guilty plea is entered, “bring liquor” is the charge of choice to put to the Court – with the others usually being withdrawn by the prosecution.

Similar “charging-up” occurs with vehicle-related offenses, where again a trifecta of “drive unlicensed”, “drive unregistered” and “drive uninsured” are commonly listed against a defendant, with two of the three being withdrawn on entry of a guilty plea. The other biggie out here is “drive disqualified”, and at this sitting 25 people are charged with this offence. All of them are likely to add to the gross over-representation of Aboriginal people in the NT prison population – where the 30% of the general population that is Aboriginal accounts for over 80% of the prison population.

The penalty in the NT for driving disqualified is undoubtedly harsh – section 31 of the NT’s Traffic Act requires 12 months prison time for a first offence. This is at substantial odds with penalties in other Australian jurisdictions – where, while recognising the seriousness of driving while disqualified, more commonly fines and periods of further disqualifications are used as a deterrent. On the basis of this one session of Yuendumu court alone, if all of the 25 take a plea of guilty or are found guilty by the Court, a lot of them will end up in Alice Springs prison for a long time and for what is essentially a victimless crime.

Crikey asked Magistrate Birch about his views on the high number of vehicle-related charges.

John Birch: I think the number of people being charged with a variety of offences has increased because now there are more police officers as a result of the (Federal) intervention and a broad section of communities that didn’t have police before, and hence, people who might have been driving unlicensed or driving disqualified wouldn’t have been detected in the past and they are being now.

Its very problematic, the issue of the use of motor vehicles out bush, we all rely very heavily on cars, but there just aren’t the facilities for people to undertake driving programs, to do the drink-driving course, to even have the wherewithal to apply for a drivers license. Perhaps if we looked at having something in the communities that encouraged people to get their drivers license in the first place and to place some value on it, then we might no see this high rate of traffic-type offending.

And of course people driving whilst disqualified is a serious offense, and often its in the combination of consuming alcohol, which more often than not leads people off to periods of imprisonment, and, in the sober light of day it is, when you think about it, an offense that common sense would just lead you away from.

Crikey: And findings of guilty in relation to “drive unregistered”, and its companion charge of “drive uninsured” can have particularly serious consequences that people may not be aware of…

John Birch: And even if they are aware of it (many Aboriginal people) may not properly understand it. And of course the penalties for driving a car uninsured are extremely high here in the Northern Territory. It’s over $500 for a first offence and over $1,000 for a second time, and we’ve already talked about people’s capacity to pay fines, and for someone to have to pay a fine of over $1,000 – it is a lot of money – it’s a lot of money whether you live in Sydney or live at Yuendumu. It can cause quite a lot a hardship for people.

Tomorrow – Court Day in Yuendumu – Part 2 – the Community Court sits.

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7 thoughts on “Court day in Yuendumu – Part 1

  1. neckers

    […] … That would be the same rubber-neckers who slow to almost a halt when there is an accident. …Court day in Yuendumu Part 1 The Northern MythCourt day in Yuendumu Part 2 The Community Court caravan rolls into town Court day in … […]

  2. Brett Badger

    Home detention may not be a sentencing option in Yuendumu but community service orders and supervision orders are and are very relevant. Often 7-8 people per court hearing end up on these kind of orders as opposed to incarceration.

    The Mt Theo Program is an approved Corrections supervisory program here and regularly receives clients in this capacity at Yuendumu and/or to be sent to Mt Theo Outstation. This is especially the case where substance abuse such as alcohol has been involved. At the last court meeting quite a few individuals were placed on community service orders with the Mt Theo Program.

    Through Mt Theo supervision other individuals have regularly completed their work at other organisations also such as Yuendumu Council CDEP, Warlukurlangu Artists and Yuendumu Old People’s Program.

  3. Robert Gosford

    Russell – thanks for pointing that out – it has been a while since I’ve practiced criminal law in the NT and then I didn’t do that much…I think the problem is that I used the word ‘requires’ rather than ‘allows for’. I stand corrected. I note your reference to the common practice being a sentence of 1 to 3 months for a first offence, with that being converted to home detention for the same period – as you would be aware, home detention is not an option at Yuendumu and many other remote townships – so if a term of imprisonment is handed down then that is it. Thanks also for the figures on imprisonment for drive disqualified and the rates of imprisonment. As Glen Dooley pointed out to me when I spoke to him about community courts (the following post on The Northern Myth), there is a serious problem with repeat offending in this area in the NT – with several instances cited by him where people have served years in prison for vehicle-related offences in circumstances where they are caught driving a vehicle shortly after being released. The other issues Glen raised included, unlike other states (Queensland comes to mind) there is no facility here to have a sentence for drive disqualified lifted upon completion of a driving course or similar and, also there is a real unwillingness on some police in remote areas to do the work (licensing, registration etc) that they consider to be the job of the Motor Registry and finally that too little account is taken of particular circumstances to the offence – I.e, I had to – my uncle told me to or there was a medical/personal emergency.
    I would appreciate any further comments on this or other issues on the blog…again, thanks.

  4. Russell Goldflam

    Bob, there’s a serious factual error in your intersting account: the offence of driving disqualified in the NT does not carry a mandatory penalty of imprisonment, let alone 12 months imprisonment. In fact, s31 of the Traffic Act provides for a maximum penalty of 12 months gaol, but no minimum. In practice, it is common for first time disqualified drivers to be sentenced to between 1 and 3 months imprisonment, which is commonly suspended on condition they undergo home detention for a similar period. Nevertheless, the rate of imprisonment, both generally and in particular for driving disqualified, is of serious concern. The NT Department of Correctional Services 2006/7 Annual Report records that on 30 June 2007 there were 78% more prisoners (41) serving sentences for driving disqualified than on the same day the previous year (23). The same Report also shows that the NT’s rate of imprisonment (563 per 100,000) is more than double that of any other Australian jurisdiction, and three and a half times the national average (163 per 100,000).

  5. Jon Hunt

    As a follow-up to my previous comment, it seems that the issue if incarceration has been investigated for some time by the governement, with no result so far:

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    […] Court day in Yuendumu – Part 1 Leading the 4 wheel-driven caravan was Stipendiary Magistrate John Birch, with an assortment of defence lawyers, police prosecutors and staff from the Central Australian Aboriginal Family Legal service in tow. … […]

  7. Jon Hunt

    Well, at least the court visits them, not the converse. In the APY lands they get arrested, brought to Port Augusta (I suppose 1000km away or so) there to wait for court in a week or two. Commonly it is some offence related to being drunk and banging someone on the head with something hard. Thence to either get off and find their way back, or spend longer in Port Augusta.

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