IN THE FEDERAL COURT OF AUSTRALIA ) ) NORTHERN TERRITORY DISTRICT REGISTRY ) No. NTG. 31 of 1980 ) GENERAL DIVISION ) BETWEEN: VLADIMIR HUDI Appellant and GRAHAM GEORGE CHUNG Respondent FOX J REASONS FOR JUDGMENT 4 FEBRUARY 1981 (EX TEMPORE) FOX J: The judgment and reasons for judgment I am about to deliver are those of the court. The appellant, Vladimir Hudi, appealed against an order of the Chief Justice of the Supreme Court of the Northern Territory pronounced on 27 October last at Alice Springs, when an appeal by him from an order of the Special Magistrate was dismissed. The appellant was originally charged with two offences, the first being that on 11 September 1980 at Docker River he sold liquor without being authorised so to do contrary to the provisions of 115 of the Liquor Act. He was further charged with taking liquor on to the reserve at Docker River without prior approval of the person in charge of the reserve, contrary to the provisions of section 140E(1) of the Licensing Ordinance. The appellant by his counsel pleaded guilty to both offences. He was sentenced to three months' imprisonment on the first charge. On the second charge he was fined $1000, in default of payment 40 days' imprisonment. At the outset of the appeal to the Supreme Court it was common ground that the Special Magistrate had exceeded his jurisdiction in imposing a fine of $1000 on the second charge. The section in question provided a maximum penalty of $200. A summons had been taken out seeking an order of certiorari, and with the consent of the parties his Honour quashed the penalty. In the circumstances this seemed an appropriate course to adopt. Nevertheless, the appellant in his notice of appeal to this court submits that because of close identity between the two charges, the Special Magistrate erred in proceeding to a conviction and entering penalty upon the second charge pending the disposal of the appeal on the first, and he now seeks the directions of this court concerning the disposal of the second charge. We will deal firstly with the appeal against the sentence of three months' imprisonment. Section 115 of the Liquor Act provides that a person shall not sell any liquor unless the sale is authorised by licence. Section 124 provides a general penalty for breach of the section, which in the case of a first offence is a fine of $1000 or imprisonment for six months. For a second or subsequent offence the penalty is $2000 or imprisonment for 12 months. The facts put to the court of summary jurisdiction were in small compass, although not all matters were agreed. What is clear and undisputed is that on 11 September 1980 the defendant entered the Docker River Settlement, having travelled there by car from Alice Springs. He had with him a significant quantity of Orlando Yellow Label Sweet Sherry, some of which was sold to aboriginal persons. Notice of his activities was given to the police, who travelled from Ayers Rock, which we are told is a considerable distance away. Upon searching the appellant's car, they found 21 full flagons of wine, 18 of them in cartons. An amount of cash running into hundreds of dollars was found in a white handbag in the vehicle, much of it in bundles of $20. The defendant initially denied selling flagons, but eventually admitted selling two flagons to aboriginals for $20 per flagon. It is common ground that this was a very much inflated price. The appellant's counsel put a version of events to the magistrate which is improbable, but which to some extent at least had to be accepted in the absence of contrary evidence from the prosecution. It was submitted that the appellant, having been warned on arrival that "there was no way in which he was entitled to sell liquor on the settlement" accepted the situation and that he eventually sold the flagons to aboriginal people under some type of pressure, observing when they approached him that they were in an agitated state. It was submitted his primary purposes in visiting the settlement were to see friends there and to sell his car, rather than the wine. The liquor, counsel said, was to be sold to finance petrol and tyre expenses. The police prosecutor had informed the magistrate that a number of aboriginal groups were seen to be intoxicated while the appellant was at the settlement, suggesting large sales of the wine. The appellant's counsel on the other hand submitted this inference did not comply with his "instructions that only two flagons were sold". This view of the facts has to be accepted and was accepted. The amount of liquor in the vehicle was not in dispute. It was admitted that the appellant originally intended to sell it, but it was said that he decided against this course when he was told it could not be lawfully sold on the reserve. The appellant could not, of course, lawfully sell it anywhere, as he did not have a licence. The appellant had no prior convictions. No character evidence was called on his behalf. The special magistrate, in sentencing the appellant, emphasized the problems the aboriginal community faces in this Territory associated with liquor. It is trite to say that no persons other than magistrates working in the area would be better equipped to assess the seriousness or prevalence of this type of offence. The liquor in question was sweet sherry in flagons and two flagons of it were sold to aborigines , and if it adds anything, were sold on a reserve. The learned special magistrate referred to the provisions of the Act which enable aborigines themselves to have certain areas restricted. He stated inter alia: "No person in the Northern Territory of Australia could not be aware of the serious problems that are associated with supplying drink in either the Aboriginal community or the white community. Drink is a serious problem throughout the Northern Territory. Legislation has been brought into operation to attempt to restrict the supply of alcohol to Aboriginal communities. That legislation is made applicable to the particular community by the Aboriginees of that community applying to the Liquor Commission to have their area exempted or restricted from the supply of liquor. Those applications are made in a conscientious effort by the Aborigines to protect their heritage and to protect their people from the ravages of alcohol." The Chief Justice in his ex tempore reasons for dismissing the appeal cited a passage in the remarks of the special magistrate, of which the foregoing quote is part, and he expressed entire agreement with them. On the hearing before the special magistrate and on appeal before the Chief Justice, the appellant was represented by counsel. Many points concerning proceedings before the magistrate are now taken before us which were not raised by the appellant before the Chief Justice. No question has been raised as to the general principles applied by the Chief Justice in determining the appeal to the Supreme Court. He said: "Whether I would have imprisoned the appellant Hudi for as long as three months had I been dealing with this in the first instance I am not entirely sure, but I am quite unable to find that the penalty of three months imprisonment for what he did, even though he was previously of good character - I am quite unable to find that the penalty was manifestly excessive or indeed excessive to any marked degree at all. The appeal is therefore dismissed." It is argued that in considering the matter both the magistrate and the Chief Justice were influenced by views of aspects of the facts which were not accepted by the appellant acting through his counsel. The principles applicable in dealing when sentencing, with facts which are in dispute or not admitted are clearly enunciated. In this case we are not able to see that any matter of substance was taken into the scales against the appellant which his counsel, who is not counsel appearing before us, did not directly or by clear inference agree to. Certainly he made a very limited submission to the Chief Justice that this possibly happened in the lower court. We believe the arguments now put along these lines are unreal, although counsel has presented his case with care and obviously after considerable preparation. Our belief is reinforced by the statement of counsel appearing before us that his client would, were the matter returned to the magistrate, give an account of factual material at variance to those which, on his instructions, counsel then appearing stated below. We have been shown for the purpose of it being tendered by way of fresh evidence an affidavit by the appellant which plainly supports the statement thus made by counsel on this. occasion. A particular matter which counsel has relied on is that the courts below, in his submission, took the appellant to be a "trafficker" in liquor and not simply a person who happened to sell a small amount of liquor on one occasion. The fact is that he was a "trafficker", to the extent that he had originally intended to sell a large quantity of wine and he did in fact sell some of it. There was no suggestion that he followed this course often or more than once. Counsel before the Chief Justice said that in substance there was "only one matter that was substantially contested, that was that Mr. Hudi had advertised the fact that he was ' His client's instructions selling liquor on the reserve.' were that in fact he had not done so. There then ensued a short discussion on the subject with the Chief Justice, in which the latter explained the sense in which this could be true and after which his Honour said, in effect, that he did not see that it mattered one way or the other. Counsel later said that, "The only real ground of appeal in this case is based on the fact that the appellant had never been in trouble before." It was argued that the magistrate applied wrong principles of sentencing and in particular over- emphasised the deterrence aspect. In our view there is no substance in this submission. Sentencing is a discretionary function, its so-called principles being only poorly defined and delineated. The protection of society may be the common consideration but one then has to ask many questions, such as how, against whom and at what stage of the life of the convicted person. No judicial person can expect to give a full exposition of all considerations which pass through his mind or upon which he acts. As a rule, some aspects will predominate and these at least he will be expected to mention. The decided cases show that the exercise of his discretion is not lightly to be interfered with. Application was made to admit fresh evidence on this appeal. In part this comprised an affidavit dealing with the prevalence of convictions for the present offence (that is, under section 115) in the large area of which Alice Springs and the Docker River reserve form part. This material was obtained on counsel's advice after the conviction and earlier appeal. Acceptance of this evidence was opposed but in the special circumstances of the case we believe that it should be admitted. Its tendency is to show that the offence does not occur very frequently in that area, in fact, there are only three recorded convictions in 1980. We have taken account of the submission of counsel for the Crown that he has not had an opportunity to meet this evidence and in particular would like to bring evidence of cognate offences. However, the material is in our opinion relevant and we make an order dispensing with any necessary parts of order 52, rule 36, which have not been complied with. The evidence, however, does not in our opinion affect the result. Although the magistrate when considering principles of punishment, used the words, "severe prevalence", we do not read his decision as being based on that consideration. The matter of prevalence was not discussed at all by the Chief Justice. The other part of the fresh evidence that was tendered consisted of two affidavits, one formal in nature from Mr. Dean, a solicitor, and the other was the affidavit to which I have already referred of the appellant himself. As counsel has frankly conceded from the beginning, this affidavit substantially contradicts parts of the circumstances as stated on behalf of the appellant in the two courts below. Indeed, if accepted it would go to show that the plea of guilty should not have been made in the first instance. To admit it now would in effect be to re-open the whole hearing. The case would have to be remitted for fresh consideration by a magistrate, not only in relation to sentence MR GILLOOLY: but in relation to conviction as well. There is in this case also an absence of compliance with order 52, rule 36. In the circumstances we are clearly of the opinion that the further fresh evidence to which I have referred should not be admitted. It has been submitted by counsel in his careful argument that the sentence was manifestly excessive so as to give rise to the inference and conclusion that the magistrate and the judge erred in the material respect. We do not agree. We concur in the observations in this regard of the Chief Justice, which we have already quoted. We are, therefore, of the opinion that the appeal should be dismissed and the sentence confirmed and we order accordingly. There is the matter of the second charge to which we have earlier referred. The sentence in relation to that charge has been quashed which means that the matter is remitted to the magistrate or a magistrate for further consideration. The sentence is not the subject of any appeal to this court. This court, therefore, makes no order in relation to this charge and no comment. Are there any further applications. No. AT 12.30 PM THE MATTER WAS ADJOURNED INDEFINITELY