Namatjira v Raabe [1959] HCA 13

High Court of Australia Dixon C.J. McTiernan, Fullagar, Kitto and Windeyer JJ. Namatjira v Raabe [1959] HCA 13

The following oral judgment of the Court was delivered by Dixon C.J.:—

Dixon C.J., McTiernan, Fullagar, Kitto and Windeyer JJ.

This is an application for leave to appeal from an order of the Supreme Court of the Northern Territory. The order was made on an appeal from conviction and sentence by a magistrate. The order of the Supreme Court dismissed the appeal subject to a reduction in the sentence which the magistrate had imposed.

The defendant who is the applicant was charged with having committed an offence on 26th August 1958 near Hermansberg in the Northern Territory of Australia. The offence charged was that he did supply liquor to one Henoch Raberaba, a person who is a ward within the meaning of the Welfare Ordinance 1953-1957, contrary to s. 141 of the Licensing Ordinance 1939-1957. Sub-section (1) of s. 141 of the Licensing Ordinance which creates the offence says that a person shall not sell, give or supply or permit to be sold given or supplied, liquor to a person who is a ward within the meaning of the Welfare Ordinance 1953-1955. Sub-section (1) prescribes the penalty. In terms it prescribes a minimum and a maximum and does so for a first and again for any subsequent offence. It provides that where the offence is a first offence imprisonment for not less than six months and not more than one year shall be imposed. In the case of a subsequent offence, imprisonment for not less than one year and not more than two years must be imposed. The magistrate was governed by that provision and, having convicted the defendant of the offence, he was bound to sentence him to a term of not less than six months imprisonment, it being a first offence.

Somewhat unusually the section goes on to provide that on an appeal from a conviction the Supreme Court of the Northern Territory shall have a wider discretion. Sub-section (5) confers this discretion where a person is convicted of a first offence; it says nothing about a second. The sub-section says that where a person convicted of a first offence against the section appeals to the Supreme Court of the Northern Territory against the conviction or against the sentence passed on the person for the offence, and the Supreme Court is satisfied that, by reason of the youth of the person, or other extenuating circumstances, the sentence passed on the person should be mitigated, the Supreme Court may, in substitution for that sentence, pass on the person a sentence of imprisonment for a lesser term or impose on the person a fine of not less than £30. The defendant having appealed from his conviction under sub-s. (1) of s. 141, Kriewaldt J. in the Supreme Court was of the opinion that his appeal against the conviction should be dismissed but he considered that he was in a position under sub-s. (5) to exercise his special discretion and he reduced the sentence which the magistrate was obliged to pass to three months, imprisonment.