Shane Jolejole v Shawali Walizada - [2010] ACTSC 146

SHANE JOLEJOLE v SHAWALI WALIZADA
[2010] ACTSC 146 (22 NOVEMBER 2010)

CRIMINAL LAW – appeal from ACT Magistrates Court – appeal against sentence – whether sentence manifestly inadequate due to failure to record a conviction – s 17 of the Crimes (Sentencing) Act 2005 – non-conviction order – magistrate took into account all relevant matters – appeal dismissed.

Crimes (Sentence Administration) Act 2005 (ACT)
Crimes (Sentencing Act) 2005 (ACT), ss 17, 34(1)(f)

Cobiac v Liddy (1969) 119 CLR 257
Commissioner of Taxation v Baffsky (2002) 192 ALR 92

Jones v Morley (1981) 29 SASR 57
Dinsdale v The Queen (2000) 202 CLR 321
Davies v Conroy [2005] ACTSC 8 (14 February 2005)

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 17 of 2009

Judge: Gray J,
Supreme Court of the Australian Capital Territory
Date: 22 November 2010

IN THE SUPREME COURT OF THE     )
  )          No. SCA 17 of 2009
AUSTRALIAN CAPITAL TERRITORY           )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:SHANE JOLEJOLE
Appellant

AND:SHAWALI WALIZADA
Respondent

ORDER

Judge:  Gray J
Date:  22 November 2010
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be dismissed.

On 26 September 2008 in the ACT Magistrates Court, a magistrate found proved against the respondent, Shawali Walizada, two offences of committing an act of indecency and one offence of attempting to commit an act of indecency on the complainant without the consent of that person and knowing that she had not consented.

The learned magistrate sentenced the respondent on 27 February 2009. Without proceeding to a conviction on the charges, his Honour made a good behaviour order requiring compliance with the good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 12 months and subject to a probation condition.

The Director of Public Prosecutions appeals against the sentence. The appeal is confined to the contention that a conviction on each charge should have been recorded.

Background

On 28 December 2007, the respondent was driving his taxi. At about 3.30 am that day, the complainant and a female friend flagged down the respondent’s taxi on Melrose Drive near Curtin. They had intended to travel to the complainant’s residence in Torrens. They asked the respondent to stop at the BP service station at Phillip to buy cigarettes and then they continued on to Torrens, where the complainant asked him to stop near a house in Torrens. Over the course of this journey, the magistrate found that two acts of indecency and one attempted act of indecency occurred.

The complainant said that she had been in Civic from about 11.00 pm for about two to three hours. During this period she had consumed alcohol and considered her sobriety to be about three out of 10 on a scale of which one was sober and 10 was very drunk. She travelled into Civic with her boyfriend and later he drove them home. During the course of that journey, the complainant felt unsafe…

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.

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Details

Case: [2010] ACTSC 146
Decision Date: 22 NOVEMBER 2010

CaseChat Overview and Summary

Shane Jolejole appealed against his sentence in the ACT Court of Appeal, following a conviction in the ACT Magistrates Court. The conviction arose from an incident where Mr Jolejole pleaded guilty to assault occasioning actual bodily harm. The prosecution accepted that the assault was not premeditated and that Mr Jolejole had shown remorse. The Magistrates Court ordered a non-conviction order under section 17 of the Crimes (Sentencing) Act 2005, which meant that Mr Jolejole would not receive a criminal conviction but would be subject to supervision and other orders. Mr Jolejole argued that the sentence was manifestly inadequate because it did not record a conviction, which he believed would have better reflected the seriousness of his actions.

The Court of Appeal examined whether the sentence was manifestly inadequate and whether the magistrate had taken into account all relevant matters when imposing the sentence. The court noted that a non-conviction order was an appropriate sentence in this case, given the circumstances of the offence and Mr Jolejole's remorse. The Court held that the magistrate had considered all relevant matters, including the nature and circumstances of the offence, Mr Jolejole's criminal history, and his prospects for rehabilitation. The Court of Appeal found that the sentence was not manifestly inadequate and dismissed the appeal.

The appeal was dismissed, and the original sentence of a non-conviction order stood. The Court of Appeal affirmed the decision of the Magistrates Court, holding that the sentence was appropriate in the circumstances. The Court emphasised the importance of considering the nature and circumstances of the offence, the offender's criminal history, and the prospects for rehabilitation when imposing a sentence. The Court also noted that a non-conviction order could be an appropriate sentence in cases where the offender has shown remorse and there is a low risk of reoffending.

Orders

Orders of the court

The appeal is dismissed.

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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