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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Shallali; Ex Parte

Details

AGLC: R v Shallali; Ex Parte [1997] QCA 288
Case: [1997] QCA 288
Decision Date: 5 August 1997

CaseChat Overview and Summary

In the case of R v Shallali, the Attorney-General of Queensland appealed against the sentences of imprisonment imposed on Mojo Shallali by the District Court. Shallali, a 23-year-old Sudanese refugee, pleaded guilty to indecent assault and indecent dealing with a child under 16. The court imposed a sentence of release upon entering into a recognisance in the sum of $500, conditioned that Shallali appear before the court to be sentenced if called upon within a period of two years. The Attorney-General argued for a sentence which would include a community service order and an order recording the convictions for the offences. The court had to decide whether the appeal should be dismissed or if the Attorney-General's arguments were valid.

The court considered the arguments put forward by the Attorney-General, specifically regarding the imposition of a community service order and the recording of convictions. The court acknowledged that Shallali was already performing voluntary community service, which was likely as beneficial to the community as any service that would be ordered under a community service order. As for the recording of convictions, the court recognised that it was within the trial judge's discretion to decide whether or not to record a conviction in cases like this. The court also considered the special circumstances of the case, including Shallali's cultural background and the impact of his refugee status on his actions.

The court concluded that it was not appropriate to interfere with the trial judge's decision, as it was within his discretion and in line with the legislative provisions. The court dismissed the appeal, emphasising that the decision should not be regarded as a precedent for not recording convictions in similar cases in the future. The court acknowledged the underlying philosophy of not recording convictions in certain cases, but ultimately found that the trial judge had exercised his discretion appropriately in this instance.

In conclusion, the Court of Appeal dismissed the appeal by the Attorney-General, upholding the District Court's decision on the sentences imposed on Mojo Shallali. The court found that the trial judge's decision to not record convictions was within his discretion and in line with the legislative provisions. The court emphasised that the decision should not be regarded as a precedent for future cases, and recognised the importance of considering the special circumstances of the case, including the respondent's cultural background and refugee status.

Orders