[back to NAP Court Transcripts] [back to NAP home]

N.B. Copyright in this transcript is the property of the Crown. If this transcript is copied without the authority of the Attorney-General of the Northern Territory , proceedings for infringement will be taken.

__________

THE SUPREME COURT OF

THE NORTHERN TERRITORY

SCC 20212093

THE QUEEN

and

GARY WILLIAM MEYERHOFF

(Sentence)

RILEY J

TRANSCRIPT OF PROCEEDINGS

AT DARWIN ON MONDAY 17 OCTOBER 2005

Transcribed by:

Court Recording Services (NT) Pty Ltd

HIS HONOUR: Mr Meyerhoff, on 12 October 2005 you were found guilty of an offence against s 226B(2) of the Criminal Code.

The particulars were that on 1 August 2002 , you unlawfully entered business premises, namely the electorate office for the Northern Territory Legislative Assembly Electorate of Fannie Bay and unlawfully damaged the said business premises. The maximum penalty for the offence is imprisonment for seven years. The finding of guilty followed a trial by jury.

The circumstances of the offending were not the subject of great controversy. On 1 August 2002 you, along with a number of other protesters, attended at the electorate office of the Member for Fannie Bay who is also the Chief Minister. Those offices are at the Parap Shopping Centre.

Your purpose in attending was, as you told the jury, to make a political protest regarding the approach the Northern Territory Government was taking to drugs. It was and is your belief that drug prohibition causes more harm than the actual drugs themselves. On this particular day you were protesting because the government's so-called 'drug house legislation' was about to come into force, and also because you and others in your group had a concern that a local general medical practitioner had been administratively prevented from prescribing S8 drugs to his patients.

You say that you went to the premises in order to speak with the local member. When you arrived, she was not present and you subsequently found out that she was ill that day. About 20 people entered the reception area of the electorate office. Then 4 people, including yourself, entered the private inner office of the member and set about barricading yourselves within that office.

You told the jury that the decision to barricade yourselves within the office was to protect your group from any difficulties that might arise with police. This was an unconvincing explanation and, in my mind, there is no doubt that your purpose in barricading yourselves within the office was to ensure that you were not readily evicted and that you could obtain the maximum media coverage of your protest. You knew you had no lawful right to enter the office and your protestations otherwise were not accepted by the jury. I do not find that surprising. I do not accept your assertion that you thought you had a right to be there.

During the course of your occupation of the premises, damage was done to a wall of the office. The damage was of a minor nature, consisting of two indentations in the wall. It seems likely that the indentations were caused when the desk that is in the office was moved in order to provide a barricade against the door to the office. There is no suggestion that you personally moved the desk or caused the damage but you remain liable because of the common intention formed within the group to prosecute your unlawful purpose and the offence which occurred during that process was a foreseeable possible consequence of your unlawful purpose. Section 8 of the Criminal Code is the relevant provision.

Police were called and negotiated with your group. When it became clear that the Chief Minister was not available and no other minister was coming to discuss matters with you, you negotiated an end of the occupation. You agreed with police that you would be allowed to leave and that police would proceed by way of summons. You provided names and addresses. Indeed that was how matters did proceed and you come to Court by virtue of a summons.

Most of the relevant action was recorded by television news crews and the coverage was subsequently seen by the jury. The police showed restraint in dealing with you and with your fellow protesters and no-one was injured. The only property damage that occurred was that which I have described.

The offending caused substantial interference with the operations of the electorate office. The sole occupant of the office expressed herself to be initially stunned and then concerned as protesters rifled through papers. She went on to say that 'I was really starting to feel quite frightened and I felt intimidated and yeah, pretty apprehensive'. Later in her evidence, she said she was also angry.

In the time following the offending, she said that she felt upset and it 'rocked her confidence' for a while. A further consequence of your actions was to tie up police resources for a period. The concern in that regard was expressed by Sergeant Moseley in his evidence. Your evidence in that regard was that 'it was just amazing that there was a dozen armed police there within five minutes and the way they run around like - you know - it is quite amusing sometimes'.

Peaceful and lawful demonstrations are an accepted part of the Australian way of life. People are entitled to join together to express views on issues and to object to policies adopted by governments and actions taken by governments. The expression of different and dissenting opinions is a vital part of our democratic processes. People are entitled to propound views that differ from and conflict with the policies of the elected government and with the views of others in the community.

However, the right to present such views is not without restraint. As Angel J observed in Watson v Trenerry (1998) 122 NTR 1 at 7: 'These residual freedoms are not absolute, to be exercised without restraint for they are to be exercised subject to other freedoms and the freedom of others.' Whilst the ability to protest is a right enjoyed by members of the Australian community, there are limits to how far protests can be taken. In this case, you have clearly exceeded those limits. You acknowledged that to be the case in your remarks made to me.

You broke the law and you did so in order to draw attention to your political grievances. You went beyond what was appropriate and acceptable and you did so deliberately. You did so in company with others.

One of your fellow demonstrators was charged with a lesser offence of trespass and was dealt with in the Court of Summary Jurisdiction. In relation to the charge preferred against her, there was no element of property damage. The provision under which she was charged and to which she pleaded guilty has a maximum penalty of a fine of $2200. She was fined $300 with a victim levy of $40.

You have been found guilty of a much more serious offence under the Criminal Code which, as I have observed, carries a maximum penalty of imprisonment for seven years. You do not get the benefit of having pleaded guilty. You expressed no remorse.

Save for the person to whom I have referred, those who accompanied you into the private office of the Chief Minister are yet to be dealt with. You were a leader of the group. You, along with three others, remained barricaded in the inner office. It was you who negotiated with the police and you were the spokesman when the media approached the group. You were not someone just along for the ride. You were an active and leading participant.

As I have already observed, you have shown no remorse for your conduct and you expressed surprise that you were convicted. In my view, personal deterrence is a significant matter in the sentencing process. I am also of the view that general deterrence is a matter to be taken into account in determining an appropriate sentence.

To your credit, the protest was intended to be peaceful and no-one was injured or harmed in the course of the events that took place. You occupied the premises for about 40 minutes and then left peacefully. Credit for the peaceful resolution of the incident must also rest with the police officers concerned.

You are a man with no prior convictions and although I am now aware of subsequent offending of a similar kind, you are to be treated as a first offender for the purposes of the sentencing process on this occasion.

During the course of the trial and subsequent to the trial, you have told the Court some things about yourself. You joined the navy when you were 16. You were there from 1991 through to 1995. After leaving the navy, you worked as a youth worker for the Western Australian Department of Education and with youth organisations in that state. You have seen and worked with many young people who have had problems with drugs. You worked for 2-3 years with Danila Dilba Health Service in Darwin. You are presently a volunteer with the so-called Network Against Prohibition. You have a strong interest in harm reduction. You have been actively involved in committees and organisations dealing with the interests of HIV sufferers, injectors of illicit drugs and users of illicit drugs.

I have received a bundle of references from your supporters. The references come from overseas, interstate and within the Northern Territory . A number of the references I found to be quite unhelpful. However, others talked of your dedication to helping others, your role in seeking to educate others and your voluntary efforts in organisations established to assist others. They emphasised your commitment to assisting others who are caught up with illicit drugs and who suffer associated illnesses.

I accept that you feel passionately about the position you have adopted in relation to drugs and that your activities have been motivated by a desire to effect what you would see as necessary change.

When you left the navy, you were diagnosed as HIV positive. I have a report from Dr Hughes confirming that you have an HIV infection. He reports that over the past 12 months, you have experienced AIDS defining illnesses including HIV wasting, two forms of pneumonia and a thrush-type condition of the oesophagus. You are currently not on anti-retroviral medication or prophylactic medication because of the side effects such medication has upon you. Dr Hughes has expressed the view that your two year survival without either of these is estimated to be less than fifty percent. It is clear that you have major health problems and your condition is unlikely to improve.

As I indicated to you at the end of your trial, a term of actual imprisonment is something which is in the mix as a sentencing option. In light of your medical condition and to a lesser extent, bearing in mind the efforts you made to ensure that this was a peaceful non-violent protest, even though it consisted of behaviour which was entirely unacceptable, I do not believe it appropriate to sentence you to a term of actual imprisonment. In my view, the deterrent aspects of sentencing can be met with an appropriate head sentence but that sentence should be wholly suspended.

I propose to sentence you to imprisonment but to suspend the sentence. The effect of taking such a course is that if you offend again, you will be liable to be punished for your fresh offending and in addition, you will be liable to serve the whole of the sentence I am about to impose. You will have had your chance and lost it.

I turn to sentence you. You will be convicted. You will be sentenced to imprisonment for a period of five months. I direct that the sentence be suspended forthwith. I set the period of two years from this date as the period during which you are not to commit another offence punishable by imprisonment if you are avoid being dealt with pursuant to s 43 of the Sentencing Act. If you do commit such an offence, under s 43 of that Act you will be liable to have the sentence to which I just referred restored.