SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Moala (No 3) |
Citation: | [2023] ACTSC 306 |
Hearing Date: | 16 October 2023 |
Decision Date: | 30 October 2023 |
Before: | McCallum CJ |
Decision: | (1) The offender is sentenced to a term of imprisonment for a period of two years commencing on 27 September 2023 and expiring on 26 September 2025. (2) I fix a non-parole period of 12 months expiring on 26 September 2024. |
Catchwords: | CRIMINAL LAW – Judgment and punishment – Sentence – choking – where offender found guilty at trial – where offender gave contrary evidence at sentence – double jeopardy – violent attack on victim – consideration of family hardship – absence of any remorse – recognition of harm – whether risk of deportation is mitigating |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 7(1), 10, 33, 53(1)(a) Crimes Act 1900 (ACT) ss 27(1) 28(2)(a), 53, 54 Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 96(2) Migration Act 1958 (Cth) s 501 |
Cases Cited: | Director of Public Prosecutions v Ip [2005] ACTCA 24 Director of Public Prosecutions v Rohrlach [2023] ACTSC 166 R v Van Duren [2017] ACTSC 132 R v Zerafa [2013] NSWCCA 222; 235 A Crim R 265 The Queen v De Simoni (1981) 147 CLR 383 |
Parties: | Director of Public Prosecutions Seti Palei Moala ( Offender) |
Representation: | Counsel M O’Connell ( DPP) E Chen (16 October 2023); S Robinson (30 October 2023) ( Offender) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT (16 October 2023); Fraser Criminal Law (30 October 2023) ( Offender) | |
File Number: | SCC 311 of 2022 |
McCALLUM CJ:
1․Seti Palei Moala was tried by jury for one offence of choking contrary to s 28(2)(a) of the Crimes Act 1900 (ACT) and two offences of sexual intercourse without consent contrary to s 54 of the Act. The jury found him not guilty of the sexual offences but guilty of the choking offence. Mr Moala now stands to be sentenced for that offence, which carries a maximum penalty of imprisonment for five years.
2․A central task in sentencing an offender is to consider the nature and circumstances of the offence. That task is complicated in the present case by an extraordinary turn of events at the proceedings on sentence.
3․The trial involved two accused. The prosecution case was that the victim had “hooked up” with Mr Moala’s co-accused at a night club and returned to his motel room with him, where they had consensual sexual intercourse. She then put her clothes back on and fell asleep.
4․The victim gave a harrowing account of what happened next. She said she awoke to find another man on top of her. It was not in dispute at the trial that that man was Mr Moala. The victim said she tried to kick the man off and throw him off the bed with her…
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- AGLC
- DPP v Moala (No 3) [2023] ACTSC 306
- Case
- [2023] ACTSC 306
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was the appropriate sentencing for Moala, considering the severity of the violent attack and the offender's evidence. The court needed to balance the harm caused to the victim with any mitigating factors, such as the potential impact on Moala's family. The court also had to consider whether the risk of deportation could be considered a mitigating factor in the sentencing process. These issues required careful deliberation to ensure that the sentence was both just and proportionate to the offence committed.
The court considered the evidence and arguments presented and determined that Moala's actions constituted a serious violent crime. Despite the offender's presentation of contrary evidence at the sentencing hearing, the court found the trial verdict to be reliable and upheld the guilty finding. The court acknowledged the family hardship but emphasised the lack of remorse shown by Moala and the significant harm caused to the victim. The court decided that while the risk of deportation was a factor, it was not sufficient to significantly mitigate the sentence. Consequently, the court sentenced Moala to a term of imprisonment of two years, with a non-parole period of 12 months.
The court's final orders were that Moala was to be imprisoned for a period of two years, commencing on 27 September 2023 and expiring on 26 September 2025, with a non-parole period of 12 months, expiring on 26 September 2024. The sentence reflected the court's consideration of the offence's seriousness, the lack of remorse, and the harm caused to the victim, while also taking into account the mitigating factor of potential deportation.
Orders
Orders of the court
(1) The offender is sentenced to a term of imprisonment for a period of two years commencing on 27 September 2023 and expiring on 26 September 2025.
(2) I fix a non-parole period of 12 months expiring on 26 September 2024.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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