Lyons, Greg --- "Jungarai v The Queen (Appeal against sentence for manslaughter - tribal Aboriginal defendant - weight to be given to punishment inflicted under customary law)" [1982] AboriginalLawB 49; (1982) 1(5) Aboriginal Law Bulletin 10

• Jungarai V The Queen
• Appeal Against Sentence For Manslaughter-Tribal Aboriginal Defendant-Weight To Be Given To Punishment Inflicted Under Customary Law.

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Jungarai v The Queen

Appeal against sentence for manslaughter - tribal Aboriginal defendant - weight to be given to punishment inflicted under customary law.

Jungarai v The Queen

Federal Court of Australia, NT District Registry (on appeal from the NT Supreme Court) at Darwin (Toohey, McGregor and Sheppard JJ)

1 June 1982

Casenote by Greg Lyons

After pleading guilty to a charge of manslaughter, the appellant was sentenced on 2 November 1981 to imprisonment for six years and six months, with a non-parole period of two years and six months. He appealed against this sentence.

The Court outlined the circumstances of the offence as set out in the trial Judge's remarks when imposing sentence:

On the night of Saturday, 14 February 1981, there was an incident involving Doreen, the appellant's wife, and another man.

This incident was on the appellant's mind when on 16 February at about 4.00 p.m. a crowd of people were gathered near the post office in one of the main streets of Tennant Creek. The appellant, Doreen and the victim Eric Jackson were present. Doreen was proclaiming the appellant's jealousy to those in the gathering. There was an argument in which the appellant alleged and Eric Jackson denied that Jackson had been with the appellant's wife on the previous Saturday. Jackson's denial was supported by his wife who is Doreen's sister. Both men had been drinking. The appellant said words to the effect that he was going to kill somebody. A fist fight broke out between him and Eric Jackson. There was a lull in the fight and the appellant, Jackson and one Jimmy Haywood walked towards the post office. The appellant was carrying a knife which he then used in a back hand punch motion, stabbing Eric Jackson in the region of the heart. It was a fatal blow but death was not immediate. A scuffle broke out again and the appellant scored Jackson on the forehead with the knife. He died within a few minutes. The appellant remained at the scene and was arrested within a short time whereupon he said: "I did it. He caused me too much trouble".

The Court described the appellant as follows:

The appellant is an Aboriginal of full blood, aged about 40, with no formal education. He has five children. His usual occupation is that of stockman or ringer but during the last five years he has been doing labouring work at Ali Curung. It was said by his counsel that he "has lived a tribal type of existence for most of his life", a statement that was not elaborated. He has a substantial record of convictions between 1964 and 1979, including crimes of violence (though none since 1972) and offences relating to alcohol.

At the time he was sentenced, the appellant had spent approximately five months in custody (having been arrested on 16 February 1981, and remaining in custody till I1 June 1981 when he was released on bail to appear on 17 August; see R v Joseph Murphy Jungarai [1981] AboriginalLawB 8; (1981) 1 Aboriginal Law Bulletin 7 regarding the appellant's successful appeal against refusal of bail. The appellant failed to appear on 17 August but was taken into custody on 31 August).

The Court dismissed the appellant's appeal against the severity of the sentence in the following terms:

There is no doubt that, in sentencing the appellant, his Honour had regard to the fact that, after his release on bail, the appellant returned to Ali Curung where he was beaten by members of the community with nulla nullas and boomerangs until he was unconscious.

The only grounds of appeal were first that the sentence was manifestly excessive and secondly that the learned trial Judge gave insufficient weight to the fact that the appellant had been dealt with for the offence pursuant to his tribal or customary law. Counsel for the appellant conceded that a custodial sentence was warranted but submitted that, having regard to the punishment imposed by the community, both the head sentence and the non-parole period were too long.

It became clear at the hearing that the first ground was not being argued independently of the second. In other words the case that the sentence was excessive was based upon the proposition that insufficient weight had been given to the actions of the community at Ali Curung. Counsel expressly conceded that if the matter were viewed without any of the overtones arising from the notion of tribal punishment, neither the head sentence nor the non-parole period would be open to challenge.

His Honour was urged to release the appellant on a suspended sentence of imprisonment, because he was unlikely to offend again and because "the Aboriginal community's anger has been quelled by tribal punishment". His Honour was not prepared to accede to this request because of the seriousness of the offence and the circumstances in which it was committed. However he was willing to take those facts into account in deciding upon an appropriate term of imprisonment. Nothing that has been said by the appellant's counsel has demonstrated any error on the part of the learned trial Judge.

The question whether courts may and should have regard to forms of punishment imposed or likely to be imposed against Aboriginal people by their own communities is a difficult one. But in the present case the Crown made no submislion that the learned trial Judge should not have regard to. the actions of the community. Nothing that his Honour said suggests that he gave any question of tribal punishment insufficient weight. We are of the opinion that he gave all matters before him due weight and that the sentence and the non-parole period were each well within the exercise of a sound discretion.

It follows that the appeal should be dismissed.

Mr P. McQueen of Masters & Reeves, instructed by the CAALAS, appeared for the appellant.