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Aboriginal Law Bulletin (ALB)
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Sweeney, Desmond --- "Detention and Imprisonment for Public Drunkenness in Queensland: O'Conner v Hill and Burns v Seaton (Sentencing principles - being found drunk in a public place - habitual offender)" [1990] AboriginalLawB 55; (1990) 1(47) Aboriginal Law Bulletin 12


Detention and Imprisonment for Public Drunkenness in Queensland:

O'Conner v Hill and Burns v Seaton

by Desmond Sweeney

Despite the publicity surrounding the Royal Commission into Aboriginal Deaths in Custody it is disturbing to note that some 18 months after Justice Muirhead's Interim Report, many of its key recommendations are still ignored.

Detention and imprisonment of intoxicated persons continues across Queensland. Between January and June 1990, on average 91 persons were arrested each week in Townsville alone for being drunk in a public place.[1] Approximately half were refused bail and detained overnight.[2] Of those arrested two thirds were Aboriginal.[3] Watchhouses are dearly unable to provide adequate "care" for intoxicated persons: three inquests have been held in the last six months at Townsville into deaths of Aboriginal people in custody - all of whom were intoxicated when detained.

Against this background comes the unreported cases of O'Conner v Hill and Burns v Seaton.

O'Conner v Hill and Burns v Seaton

Sentencing principles - being found drunk in a public place - habitual offender

O'Conner v Hill & Burns v Seaton

Wylie J, District Court Townsville

20th June DCA 4 & 5 of 1990

Both Seaton and Hill had been arrested and detained on the charge of being drunk in a public place. Seaton had sought treatment at the hospital. Hill had been found asleep under a tree in the mall. In neither case was there any allegation that they had behaved in a disorderly manner. Both were chronic alcoholics and had a long' history of public drunkenness offences. Upon their pleas of guilty in the Magistrates Court they were ordered to pay $30 forthwith or, in default, 14 days gaol. As neither had money to pay the fine, they were imprisoned.

Having considered the backgrounds of the defendants, Wylie J stated that: "each [defendant] has had few advantages in life and it is reasonable to expect that their way of life will not alter if each is left to his or her own devices. Gaol and fines have proved no deterrent." He further observed that "Alcoholism is a disease." (at pages 5 & 6)

Upon construing the relevant Queensland legislation Wylie J. held that the sentencing options for a person charged under Section 81 of the Liquor Act 1912-1989 (Qld) are limited. Sentencing options are limited to:

(i) discharge without conviction (under s657A of the Criminal Code);
(ii) conviction, but discharge without penalty; or
(iii) conviction and fine with a default period of imprisonment for non-payment of the fine.

There is no provision to extend time for payment of a fine, to place the offender on probation, or to order the offender to perform community service.

Wylie J pointed out that Magistrates have an obligation to explain to the defendant his or her right to apply for a Fine Option Order (community service in lieu of a fine) under Section 231 Corrective Services Act (Qld) 1988. However, in the authors opinion, such an order would rarely be granted, as the defendant would be classed as an unsuitable person due to his or her alcoholism.

Wylie J then turned to the appropriate sentencing principles to be applied.

He observed:

"The provisions of s. 81 of the Liquor Act reflect the attitude of a much earlier age when punishment was commonly seen as the panacea for society's ills .... For a considerable time now society has been more concerned in an appropriate case to reform rather than to incarcerate or to mulct limited financial resources. It is the mark of an intelligent, caring civilisation - such as Queensland claims to be that whenever possible it seeks to be merciful, understanding and helpful to the less fortunate of its members. The chronic alcoholic is as deserving of such tender mercy as is any other." (at pages 6-7)

Wylie J. then considered whether it was appropriate for chronic alcoholics, already detained in custody overnight, to be fined and given default sentences of imprisonment for public drunkenness. He concluded that in the case where they have not made a public nuisance of themselves that it was not:

"There is nothing special about the offence of public drunkenness. It is a victimless offence; one merely regulating behaviour in public. The community has long accepted that imprisonment for impecuniosity is unjust".(at page 12)

He further stated that if a fine is imposed then any default period of imprisonment must be in proportion to the seriousness of the offence and the amount of the fine. In the present case the Magistrate had imposed half the maximum fine and half the maximum default period. The Magistrate stated that the default period of 14 days imprisonment, for a fine of $30, was excessive.

The Magistrate is, of course, limited to what sentence should be imposed upon a person once they have been brought before the Court. The wider issues of detention of intoxicated persons in a watchhouse overnight where they been refused bail, and decriminalisation of the offence of public drunkenness need to be addressed through other avenues.


[1] Watchhouse statistics

[2] Estimate of Watchhouse Keeper

[3] Estimate of Aboriginal Legal Service


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