R v Jungala

[1997] QCA 212

[1997] QCA 212

COURT OF APPEAL
DOWSETT J
MACKENZIE J

HELMAN J

CA No 131 of 1997
THE QUEEN
v.

JIMMY JUNGALA Applicant

BRISBANE
..DATE 18/06/97
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MACKENZIE J: The applicant was convicted and given suspended
sentences against which he seeks leave to appeal for three
related offences. The applicant who resides in the Hart Range
area of the Northern Territory had come to Mt Isa with others to
attend a funeral. He ordinarily worked as a station hand and
has very little formal education. English is not his first
language.

The funeral was on the Monday and the offences occurred in the early hours of the following Thursday. According to submissions on the applicant's behalf before the Magistrate the applicant was homesick because of the delay in returning home and got drunk during the evening preceding the commission of the offences.

The fact that he was drunk was corroborated by a reading of 0.21 taken on the breathalyser shortly after relevant events. At about 12.45 a.m. on the day in question police in the police barracks were woken by the sound of an engine revving loudly in the police reserve. The applicant was seen trying unsuccessfully to drive a Holden utility held in the yard pending collection by the rightful owner through the locked gates. The vehicle had been able to be started without a key.

When the police came on the scene the applicant ran off and when challenged he took a small knife from his pocket and pointed it at the police officer who quickly disarmed him. It was said on his behalf that he had no intention of harming the police officer and had done what he did hoping that he would go away. Nevertheless, the police officer was entitled to make the 180697 D.1 T7/TES23 M/T COA131/97

obvious assumption that unless he took decisive action to disarm
the applicant, the knife may have been used.

Arising from those events charges of unlawful use of a motor vehicle wilful and unlawful damage to the gate and assaulting a police officer in the execution of his duty were brought, to which the applicant pleaded guilty. On the unlawful use of a motor vehicle he was convicted and sentenced to a fully suspended sentence of six months with an operative period of two years. He was ordered to pay $820 restitution within 12 months in default 2 months imprisonment.

On the wilful damage charge he was convicted and given an identical suspended sentence with an order for restitution of $345 within 12 months in default 21 days imprisonment. For the assault of the police officer in the execution of his duty he was convicted and sentenced to three months imprisonment fully suspended for 15 months.

The applicant was of unknown age although there is some suggestion in the material that he may have been in his mid 20s.

He was married with two children, he had no previous
convictions, he was employed as a station hand on his community.
It was submitted before us that the offences were not serious
examples of their type and I have already referred to the
submission below that there was no real intention to cause harm

to the police officer and that the offence arose from

homesickness and drunkenness.
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It was submitted that a non-custodial sentence should have been
imposed. In this connection it should also be mentioned that
the applicant was fined $1100 with two years to pay in default
five weeks imprisonment for driving under the influence of
liquor during the course of the incident. He therefore has a
current liability to pay $2,265 over two years.

In the absence of any inquiry suggesting that he had a capacity to pay more than that, imposition of further fines is, in my view, not a realistic or appropriate option, nor are community- based orders, as the Magistrate observed during the sentencing process.

The Crown's basic submission was that the sentences were appropriate. However it was maintained that neither fines nor community-based orders were appropriate, although it was conceded in the written submissions that community-based orders would have been appropriate given his personal history and the nature of offences, had the other practical consequences of his living in a remote area out of the State, not intervened.

It was submitted that the offences were too serious to be allowed to pass without some meaningful sentence and that a recognisance alone was not sufficient. My view in the matter has been influenced by the feeling that in other circumstances the applicant would not have been sentenced to a suspended sentence of as long as he was sentenced to.

The only question, really, is whether there should be a reduced period of the suspended sentence or a recognisance. I would not 180697 D.1 T7/TES23 M/T COA131/97

disturb the order for a conviction nor the orders for restitution. I have come to the conclusion that, all things considered, the sentence of six months is manifestly excessive.

It is my view that, notwithstanding the way that the Magistrate treated the hierarchy of the offences, the most serious offence is that of producing the knife and threatening the policeman by presenting the knife at him during the course of the incident.

I have come to the conclusion that a wholly suspended sentence of three months is appropriate in respect of each offence. I would grant leave to appeal, I would allow the appeal in respect of the sentence of six months in respect of the offences of unlawful use of a motor vehicle and unlawful and wilful damage to property, and I would substitute in lieu thereof a period of three months to be fully suspended with an operational period of 15 months.

I would not interfere with the Magistrate's recording of a conviction nor the orders for restitution made in each case.

DOWSETT J: I agree.

HELMAN J: I agree.

DOWSETT J: The order of the Court will therefore be with respect to the unlawful use count and the wilful damage count, that there be leave to appeal, that the appeal be allowed in each case and that in each case the period of imprisonment be varied to a period of three months and that the operational period for the suspension of each be varied to the period of 15 180697 D.1 T7/TES23 M/T COA131/97

months. The application in respect of the third count of

assault is dismissed.

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