Jungarai, Joe Murphy v The Queen [1982] FCA 98

• Appellant AND THE QUEEN
• Respondent ORDER JUDGES MAKING ORDER Toohey, McGregor and Sheppard JJ. WHERE MADE: Darwin DATE 1 June 1982

NORTHERN TERRITORY DISTRICT REGISTRY No. NIG 29 of 1981 { j a ; . . IN THE FEDERAL COURT OF AUSTRALIAGENERAL DIVISION

1 ON APPEAL FROM THE SUPRFME COURT I "eee ee eee eee | OF THE NORTHERN TERRITORY

DATE: | June 1982 'REASONS FOR JUDGMENT The appellant pleaded guilty to a charge of manslaughter and on 2 November, 1981, was sentenced to imprisonment for six years and six months with a non-parole period of two years and six months. He appeals against that sentence. The circumstances of the offence are set out in the

learned trial Judge's remarks when imposing sentence. On

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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. Jackscn'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

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appellant scored Jackson on the forehead with the knife. He died within a few minutes. The appellant remained at 4 the scene and was arrested within ae short time whereupon

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The appellant is an Aboriginal of full blood, aged about 40, with no formal education. He has five children. His usual occupation 1s 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 thas '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.

The appellant was arrested on 16 February, 1981, and remained in custody until 11 June, 1981, when he was released en bail to appear on 17 August. He failed to appear on that day and was taken into custody on 31 August, 1981. Thus he had spent about five months in custody at the time he was sentenced.

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

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 punish- ment 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 1f 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.

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

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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 submission 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 guestion 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

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