R v Shallali; Ex Parte

[1997] QCA 288

[1997] QCA 288

COURT OF APPEAL

McPHERSON JA
DAVIES JA
WHITE J

CA No 262 of 1997

THE QUEEN

v

MOJO SHALLALI  Respondent

and

ATTORNEY-GENERAL OF QUEENSLAND  Appellant

BRISBANE

DATE 05/08/97

DAVIES JA:  This is an appeal by the Attorney-General against sentences of imprisonment imposed on the respondent Shallali in the District Court on 2 June last.  On that day the respondent pleaded guilty to indecent assault and to indecent dealing with a child under 16.  The circumstances relating to the second of these offences were such as in other circumstances to justify a sentence of imprisonment but in the circumstances of this case the Attorney-General in his appeal does not ask that a sentence of imprisonment now be imposed by this Court.

In the event in the Court below the respondent was sentenced in each case by an order that he be released upon entering into a recognisance in the sum of $500 conditioned that he appear before the Court to be sentenced if called upon within a period of two years.  No conviction was recorded in either case.  The learned sentencing Judge described the case as a borderline one and told the respondent that he was very close to going to prison.  He said that if he came back before him the odds would be that he would most certainly go to prison depending on the circumstances. 
The respondent, a 23 year old man, is a refugee from Sudan who arrived in Australia on 21 May 1996.  He was born in Western Sudan and belonged to the Nubian Ethnic Group.  He is a widower, his wife having died of illness in 1992.  He has a seven year old son who is partially deaf and who is totally dependant on him.  He resides with his son, his sister-in-law and her two children aged six and three.  He had a reasonably good education in Sudan.  He has worked as a volunteer teacher in Sudan and he has an IQ in the high average range.  However his history given to a psychiatrist is consistent with post traumatic stress disorder and a major depressive disorder arising from his experiences before coming to Australia, which involved political genocide of members of his race in Sudan and the traumatic experience of relocation in Australia.  However it is not suggested that these conditions contributed to the commission of the offences.  It should also be added that according to the psychiatrist the respondent has no paedophilia tendencies. 

The victims of his two offences were a Ms CA, a woman of 33 years of age, who lived with her de facto husband, her daughter and her step-daughter N in the same block of the flats as the respondent and N who at the relevant time was only 12. 

The first offence occurred on 25 June 1996.  As neighbours Ms CA and the respondent knew each other slightly but there had been minimal contact between the families.  On the day in question the complainant was in her unit knitting when the respondent came to the door stating that he needed some help with a typewriter and that he would like a cup of tea.  There was a general discussion including about Sudanese customs.  The respondent said "This is another custom of ours" and put his hands on the complainant's shoulders and kissed her on the left and right cheek and began sucking her lips.  The complainant said she had a cold and touched herself on the chest and the respondent then also patted her on the chest.  He then said, "Come here" hugged her tightly and started again to suck her lips saying, it seems, "I hope you're not taking this the wrong way."  She pushed him away.  He said, "You don't feel like doing this because you're sick" and she agreed with that.

When interviewed by the police the respondent said that a normal greeting in Sudan was shaking hands, that hugging and kissing on cheeks was usually only with close friends.  He denied the complainant's allegations, said there had been no physical contact, that they had only had some coffee and that he was surprised by the allegations.  However he told the psychiatrist who examined him that Ms CA often visited his house and she would often hug him.  He also said that hugging was a normal part of his culture.
Mr Ridgeway who appeared for the Attorney before us emphasised the inconsistency between that account and the account given to the police and consequently cast doubts upon the accuracy of the conclusions of the psychiatrist. 

The other offence was more serious because it involved such a young girl and because the conduct was more sexually explicit.  N and her step-sister were playing with children in the respondent's household, though outside, when the respondent came outside saying something about his typewriter.  The complainant offered to help and was later sitting at the typewriter with the respondent.  After approximately 20 minutes of typing the respondent told the complainant to stand up and he closed the door.  He then hugged her and kissed her on the lips putting his tongue in her mouth.  He then pushed her jacket to one side, pulled down the right strap of her dress, exposed her breasts and kissed her on the breast.  He then went to kiss her on the lips again and the young girl said "No, that's gross."  He then said to her, "You are wonderful, every night at 7.10 you should come to my back door so we can have some privacy."  N made a complaint to her step-mother shortly afterwards. 

The respondent also denied these allegations to the police but said that N touched his hand and body and he would try to push her away.  He also made a similar statement to the psychiatrist.  He also said that he thought N was older, that in Sudan there were no rules about the age of a sexual partner and that if a woman was sexually developed, as he thought N was, she was old enough to enter into a relationship.

Victim impact statements were tendered on behalf of both complainants.  Ms CA said that after the incident she felt dirty, scared and most upset.  She felt he had used his refugee status and his past experiences to take advantage of her good nature.  He said she had difficulty trusting males and instinctively maintained a distance between them and herself.

N also said that she felt dirty and confused and kept asking herself "Why did it happen to me?"  She said that for weeks she cried herself to sleep and had nightmares and she still has flashbacks.  She said she does not like being alone in case she ever saw him again. 

The respondent made a prompt plea of guilty in consequence of which neither complainant was required to give evidence.  He had no previous convictions and he was apparently well spoken of by his contemporaries.  He indicated his remorse accepting that his behaviour was wrong.  He is studying a social science course which is of three years duration.  He is a volunteer worker in his spare time, a social convenor of the Australian African Association and he works at the Brisbane Migrant Resource Centre.  He hopes to become involved as a social worker for a United Nations funded organisation which would not employ him if a conviction were recorded against him. 

The Attorney-General acknowledges that the prosecutor below conceded that a non-custodial sentence was within range and does not now seek to argue that a sentence of imprisonment should be imposed.

Rather the Attorney contends for a sentence which would include a community service order and an order recording the convictions for the offences.  Neither of the offences involved in this case is of a trivial nature.  Indeed the second of them was of a kind which in other circumstances might have justified a term of imprisonment.

To what extent cultural difficulties contributed to misunderstandings is not clear.  In the end the question before this Court is whether it should impose in addition to the sentence which was imposed, an order that the respondent perform community service and an order recording a conviction against the respondent.  As to the first of these Mr Ridgeway fairly conceded that there was no great substance in it.  He is, as I have already mentioned, already performing voluntary community service and Mr Ridgeway concedes that this service is probably a greater benefit to the community or at least as beneficial to the community as any service which would be ordered under a community service order.  It is therefore unlikely that an order for such service would achieve anything.

As to the recording of a conviction in the light of the legislative provisions relevant to that matter judicial minds may of course differ.  The question before this Court is not whether we would have recorded a conviction.  It is whether the learned sentencing Judge erred in the exercise of his discretion in failing to record one.

The respondent is admittedly not a young man and as I have already indicated neither of the offences in particular, the second of them, is a trivial offence.  However it was open to His Honour to regard cultural difficulties as playing some part in the respondent's conduct and that in the special circumstances of this case a conviction should not have been recorded.

I would therefore dismiss the appeal.

McPHERSON JA:  It is only with considerable hesitation that I agree that we should not intervene in this case.  There are personal circumstances which left it open to the Judge to take the view that a conviction should not be recorded.  It is unlikely in my opinion that circumstances of that kind will be repeated in the future and I therefore go so far as to say that for my part I would not regard this decision as in any way a precedent for not recording convictions in cases of this kind in the future.

The whole philosophy underlying the notion that convictions should not be recorded, even in cases of this kind, is to my mind one which is in a sense fundamentally flawed because it involves the Court in suppressing information which ordinary employers and other might reasonably expect to receive in circumstances in which the matter is relevant to future relations between them and the person convicted.

However it is the policy of the legislature as laid down in the Penalties and Sentences Act that the matter should be committed to the discretion of the trial Judge and the Judge in this instance having exercised his discretion I see no basis on which we are bound to interfere with it.

I would therefore agree and concur in dismissing the appeal.

WHITE J:  I agree that the appeal ought to be dismissed for the reasons expressed both by the learned presiding Judge and Mr Justice Davies.