Director of Public Prosecutions v Moala (No 2)

[2023] ACTSC 273

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Moala (No 2)

Citation: 

[2023] ACTSC 273

Hearing Date: 

27 September 2023

Decision Date: 

27 September 2023

Before:

McCallum CJ

Decision: 

Bail is revoked.  

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – where applicant is awaiting sentencing for indictable offence – where there is no presumption of bail – flight risk

Legislation Cited: 

Bail Act 1992 (ACT) ss 9B(e), 9D, 22

Crimes Act 1900 (ACT) s 28(2)(a)

Parties: 

Director of Public Prosecutions

Seti Palei Moala ( Accused)

Representation: 

Counsel

M O’Connell ( DPP)

E Chen ( Accused)

Solicitors

ACT Director of Public Prosecutions

Legal Aid ACT ( Accused)

File Number:

SCC 311 of 2022

McCALLUM CJ:       

1․Seti Moala has been found guilty after a trial by jury of one of four counts on the indictment against him. The three counts of which the jury acquitted him were allegations of sexual assault. The count on which he has been convicted is an allegation of choking contrary to s 28(2)(a) of the Crimes Act 1900 (ACT). That offence carries a maximum penalty of five years imprisonment.

2․The applicant has been on bail for some time.  Following delivery of the verdict, the prosecution seeks to have bail revoked pending sentence.

3․Under the Bail Act 1992 (ACT), an applicant for bail either has an entitlement to bail, faces no presumption for bail or faces a presumption against bail, depending on the offences or other circumstances specified in the Act. In Mr Moala’s case, the is no presumption for bail because he has been convicted of an indictable offence but not sentenced: s 9B(e) of the Act.

4․Section 22 of the Act sets out the criteria to which I am to have regard. That includes s 22(2), which provides that I must have regard to the likelihood of the offender being given a sentence of imprisonment. I have not of course heard all of the evidence that will be adduced on sentence. I have however heard the evidence of the complainant as to the circumstances in which she was choked.

5․It is appropriate also to note that the offender lives in Sydney, quit his employment before coming to Canberra for the trial and resides with an elderly man in Granville.  His mother and eight siblings are all in Tonga, the country where the offender was born.  

6․He does have some family in Sydney and he has indicated that he would agree to daily reporting and a curfew.  However, in all the circumstances, I am of the view that bail should be revoked at this point having regard to the risk of flight, the lack of any real ties with either Sydney or Canberra and the seriousness of the offence of which he has been found guilty. 

7․Accordingly, bail is revoked.

I certify that the preceding seven [7] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

Date: 22 November 2023