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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 legs but that he would not get off her and “he just kept saying that he was like Spider Man”. She said she was hitting him and punching him and that, as a result, her knuckles were “busted”. That evidence was confirmed by the independent evidence of Dr Van Dieman, who examined the victim within hours of the assault. Dr Van Dieman said the victim had “obvious swelling and tenderness” over the right third, fourth and fifth knuckles. The victim said Mr Moala got her clothes off, apart from her bra, which he lifted up near her neck. She said she kept trying to punch him over and over “and that's when he got the shits” and grabbed her arms and pulled them above her head to restrain her, as a result of which she got his handprint on her arm. That evidence was also confirmed by Dr Van Dieman, who found “a cluster of bruises” on the victim’s right forearm.

5. The victim said Mr Moala was “really rough” and that he was choking her and holding her face. She said he had his hand on her neck and was “pushing down”, grabbing her and choking her. Describing the choking, the victim said she could still get some air in, but that it was “restricted” and that it was “hard to breathe”. Once again, that evidence was corroborated by the evidence of Dr Van Dieman, who found that the victim had swelling, redness and abrasions to her neck. It was also corroborated by forensic evidence that DNA matching Mr Moala was found on the victim’s neck.

6. The victim said Mr Moala’s hands were around her neck and on her arms while he was committing the sexual acts she alleged. She alleged two separate sexual assaults by Mr Moala at that time, giving rise to the two counts on the indictment. She also alleged further sexual acts by the co-accused in the presence of Mr Moala, which she said were non-consensual.

7. The co-accused gave evidence in the trial in which he denied that any further sexual intercourse occurred in the motel room after the consensual intercourse he had with the victim when they first returned from the night club, which was before Mr Moala entered the room. Mr Moala did not give evidence in the trial. However, as required by the principles of procedural fairness, the victim was cross-examined as to his version of facts. The defence case put to the victim through the cross-examination was that there was no sexual intercourse between Mr Moala and the victim. It was put that they were kissing and rolling around on the bed but that they did not have sex and that his penis never penetrated her vagina. In closing address, counsel for Mr Moala reminded the jury of forensic evidence that DNA matching the victim was found only on the tip of Mr Moala’s penis and not on the shaft of his penis. He invited the jury to have a doubt as to whether sexual intercourse took place between them.

8. The co-accused was acquitted. As already noted, Mr Moala was convicted of the offence of choking but acquitted of the sexual offences charged against him.

9. In light of the verdict of guilty of the offence of choking, the only rational explanation for the jury’s verdicts of not guilty of the sexual offences is that they entertained a reasonable doubt as to whether any sexual intercourse occurred between the victim and Mr Moala. The victim’s evidence was that she was being choked when the alleged sexual acts began. Her evidence of the choking having been accepted, the jury could not rationally have concluded that she consented to any sexual intercourse, or that Mr Moala might have believed she was consenting to sexual intercourse at that time. On my assessment of the evidence in the trial and in light of the jury’s verdicts, the offender must be sentenced on the basis that there was a violent struggle between the victim and the offender culminating in his choking her but no sexual intercourse.

10. The proceedings on sentence saw an extraordinary turn of events which, as I will explain, I must largely ignore. Defence counsel called Mr Moala to give evidence to prove that his family in Tonga would suffer hardship if he were sentenced to a term of full-time imprisonment. Notably, the evidence-in-chief did not address the circumstances of the offence. Mr Moala did not seek to explain his offending or express remorse or apologise to the victim, who was present in Court at that time.

11. The prosecutor took the opportunity to cross-examine Mr Moala about the choking offence, as she was entitled to do. Mr Moala initially denied that, when he was on top of the victim, she was struggling to get him off. The cross examination continued: MS O'CONNELL: So why did you choke the victim? THE WITNESS: I don't know. MS O'CONNELL: You don't know why you choked her? THE WITNESS: We were kissing. That's why I was touching her neck. MS O'CONNELL: You were kissing. So you thought I'll just hold her neck down while I'm kissing her. Is that what you would have us believe? THE WITNESS: Maybe.

12. Under further cross-examination, Mr Moala agreed that he was on top of the victim at the time he had his hand on her neck and that he was “pushing down”. He agreed that he is “quite a big, strong man”. He said he held his hand on the victim’s neck for a minute. He agreed that, before this occurred, he had taken off her clothes and that she was resisting and striking him. He agreed that he held the victim’s hands above her head just before he put his hand on her neck.

13. In re-examination, the offender’s counsel asked the offender what he was thinking about the victim’s state of mind when he was holding down her arms. The question was interpreted into the Tongan language by the interpreter who had assisted Mr Moala throughout the six-day trial. The offender then said in English, “[w]e were having - like, just when we were having sex”. The interpreter said at the same time, “we were having sex”.

14. Counsel for Mr Moala later stated that he was surprised by that answer. He has since ceased to act for Mr Moala.

15. The most disturbing aspect of this development is that the victim has been subjected to the trauma and humiliation of in effect being branded a liar during the trial only to hear during the proceedings on sentence that she was cross examined on a false premise. Mr Moala has now given sworn evidence that they were having sex at the time when he was holding her down. She has been wrongly accused of describing sexual acts against her that never happened. She has been denied the opportunity to explain to the jury, if explanation were needed, that a woman lying on her back being choked by a stranger lying on top of her is not to be taken to consent to have sexual intercourse with that person.

16. To add insult to the victim’s injury, I am now required by law to disregard the offender’s admission that he was having sex with the victim while he was holding her down by the arms before choking her. The offender has been acquitted by the jury of the two sexual offences alleged against him. The principle of double jeopardy holds that he cannot be tried again or punished for those offences, even though the defence was conducted on a false basis. I am constrained by law to sentence him on the strength of findings of fact consistent with the jury’s verdicts of acquittal. In other words, I am constrained to sentence him, not according to the facts he now admits, but according to the fiction that intention to engage in sexual intercourse formed no part of the choking offence.

17. I want to be clear that, in making these points, I am not falling into the error of taking irrelevant considerations into account. I am acutely aware that, in sentencing the offender, I must disregard the evidence concerning the sexual offences of which he has been acquitted by the jury. He is to be sentenced only for choking the victim. Furthermore, Mr Moala cannot be sentenced on the basis that he choked the victim with intent to commit any sexual offence. That would have constituted the more serious offence of sexual assault in the third degree, contrary to s 53(1) of the Crimes Act. In accordance with the principle in The Queen v De Simoni (1981) 147 CLR 383, circumstances that would have constituted that more serious offence cannot be taken into account. Impact on the victim

18. Furthermore, I am not permitted to have regard to the impact of this development on the victim. The victim in this case has been dealt an extraordinary injustice by a legal system in which allegations of sexual assault, more than any other kind of allegation of criminal conduct, are often met with deeply embedded scepticism. But I am required to ignore that fact in sentencing the offender.

19. I am required to take into account the effect of the offence on the victim: ss 33(f), 53(1)(a) of the Crimes (Sentencing) Act 2005 (ACT). Again, however, I must confine my attention to the impact of the choking offence. The victim read her victim impact statement aloud at the proceedings on sentence. The statement did not differentiate between the impact of the offence of choking and the impact of the offences of which Mr Moala was acquitted. Counsel for Mr Moala did not seek leave to cross examine the victim on that issue, no doubt mindful of the constraint imposed by s 96(2) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). I must nonetheless take care to confine my consideration to the likely impact of the choking as described at [4] and [5] above.

20. The victim’s statement gave a disturbing account of the impact on her of the offender’s actions. She suffered intrusive thoughts and found she could not perform basic tasks. Most disturbingly, she felt that she was unable properly to care for her son for a period of time because she did not feel worthy of him. She withdrew from the world. The victim says, however, that she has been able to “reclaim” her life. She said, “I rose above the darkness you imposed on me, transforming it into a source of strength to do better.”

21. I am mindful of the fact that her experience undoubtedly reflects her version of facts, which I must edit in the manner I have explained. I am nonetheless persuaded beyond reasonable doubt that the choking alone would have been a terrifying experience for the victim and would have been the cause of a significant part of the trauma she describes. Objective seriousness

22. It is necessary to make an assessment of the objective seriousness of the offence. While it is not necessary to express this as a point on a hypothetical range, that is a common approach and it was the course adopted by the parties in the present case.

23. Counsel for Mr Moala submitted that the offence was “at the lowest end of the objective seriousness spectrum”. The submission is unsustainable and, with respect, should not have been made. The victim’s injuries alone take the offence out of the lowest range.

24. The submission was framed by reference to a recitation of important considerations provided by Refshauge AJ in R v Bonfield [2021] ACTSC 362 at [68]-[69] and adopted by McWilliam J as a list of “considerations which may be significant” in Director of Public Prosecutions v Rohrlach [2023] ACTSC 166 at [30]. Such lists can be useful provided their limits are understood. A list of factors drawn from decided cases can never serve as a proxy for the central judicial function of making an evaluative assessment of the overall objective seriousness of an offence having regard to the circumstances of the case at hand. The offender’s submissions treated Refshauge AJ’s discussion of the authorities as a checklist of factors in the absence of which an offence would sit at the bottom of the range of objective seriousness. That is plainly not what his Honour intended. It is trite that the absence of an aggravating factor does not mitigate an offence; it simply means the offence is not aggravated by that factor.

25. In any event, the submission having been made, it is necessary to engage with some of the points raised.

26. Mr Chen, who appeared for the offender at the trial and at the hearing of the proceedings on sentence, submitted that it cannot be proven beyond reasonable doubt that the victim sustained any injuries as a result of the choking. He submitted that the Court could not be satisfied beyond reasonable doubt that any particular injury found on the victim’s neck and jaw was attributable to the single-handed choke because: [T]here are a number of injuries unaccounted for, leaving open the real possibility a number of events occurred that are not known to the Court which may explain one or more of the injuries to the neck and jaw area [and that] other events not recalled by the victim may have caused the injuries to her neck. I reject that submission. The victim described the nature of the choking. Dr Van Diemen described the injuries to the victim’s neck as being “consistent with non-fatal strangulation”. While that is not an opinion as to causation, it is absurd to suggest that the injuries to the victim’s neck were caused in any other way than by Mr Moala’s act of choking her.

27. Separately, Mr Chen noted that the choking did not cause the victim to begin to lose consciousness. That is true but it does not mean the offender’s act was one of minor seriousness; it merely keeps it out of the category of very grave seriousness.

28. It was further submitted that there was no evidence to prove beyond reasonable doubt that the choking occurred for any duration “other than briefly”. That submission was made before the offender gave evidence at the proceedings on sentence. He said on oath that he held the victim’s neck for one minute. Such estimates are often not reliable. In the present case, the estimate must be regarded with circumspection given the offender’s lack of fluency in English. A better guide to the duration of the choking is the victim’s description of having difficulty breathing and the independent evidence of her injuries. The injuries could not have been caused by the placement of brief pressure on the neck, unless perhaps it was pressure of extreme force. Having regard to the medical evidence, I am satisfied beyond reasonable doubt that the choking continued more than briefly. It caused abrasions, redness and swelling, suggesting the continued application of significant pressure during a struggle, exactly as described by the victim. Beyond that, it is not possible to make any precise finding.

29. Mr Chen further submitted that the amount of force used, which restricted the victim's ability to breathe, is an ordinary feature of such offending. Shorn of context, the submission is meaningless. It does not compel the conclusion that the offence was among the least serious of its kind. It does not assist the Court to determine how much force was used, or how much the victim’s breathing was restricted. As noted by the prosecutor, the offence consists in applying “pressure, to any extent, to the person’s neck” (emphasis added): s 27(1) of the Crimes Act. For the reasons already explained, I am satisfied that the extent of pressure applied by the offender was significantly greater than the minimum pressure required to constitute the offence. The victim said, and the offender has since accepted, that he was lying on top of her and pushing down on her neck. In her evidence the victim demonstrated with a sound that indicated a significant degree of restriction of her breathing. The injuries indicate that a significant degree of force must have been used; well beyond the minimum required to establish the offence.

30. Next, Mr Chen noted that no verbal threats were made at the time of choking and that no aides such as ropes or cables were used. Again, those are factors drawn from Refshauge AJ’s list, the presence of which might have taken the offence into a graver category. Their absence does not mean that it was not a serious offence of its kind.

31. Next, it was submitted that the offender voluntarily released the victim. The submission provides a neat illustration of the vice of adopting a checklist drawn from decided cases as a template for determining objective seriousness. In Bonfield at [69], Refshauge AJ said: The use of aids such as rope, cables or the like will aggravate the offence, as will the circumstances in which the offender releases the victim, such as by being beaten or pulled off the victim.

32. The second proposition appears to have been drawn from the sentencing decision of Murrell CJ in R v Van Duren [2017] ACTSC 132. The offender in that case held an RSPCA inspector in a chokehold until her voice became strained, her face began to turn a dark red and she experienced difficulty with breathing. He only released his hold after being struck repeatedly on the legs with a baton by a police officer. That appears to have been a factor in Murrell CJ’s assessment at [22] that the objective seriousness of the offence was “moderate to high” and called for a significant sentence of imprisonment.

33. In Rohrlach at [30](g), drawing from Bonfield, McWilliam J included in a list of significant factors relevant to choking offences, “the circumstances in which the offender released the victim from the choke”.

34. Relying on the list in Rohrlach, Mr Chen then submitted that one of the reasons the offence is at the lowest end of the objective seriousness spectrum is the fact that Mr Moala voluntarily released the victim. But that is not a mitigating factor. Not having to be beaten on the legs with a baton before you will release a choke hold does not reduce the seriousness of an offence.

35. Upon analysis, the circumstances in which the offender released the victim from the choke in the present case do not point to an offence of low seriousness. The only reasonable inference from the victim’s evidence, which I accept without hesitation, is that the offender’s purpose in choking her was to force her to submit to unwanted sexual intercourse. No doubt he released her when that purpose was achieved. As I have explained, I cannot take those inferences into account in the present case. It does not follow that I am obliged to sentence the offender on the most innocent available characterisation of his conduct, as if he released her because he had a sudden rush of remorse. In the constrained circumstances in which I am sentencing the offender, the most that can be said is that the evidence as to how and why he released the victim is neutral. It is not a mitigating factor.

36. Next, it was submitted that, apart from being intoxicated, the victim was not particularly vulnerable. I do not accept that submission. She was asleep. She had no means of defending herself when the offender got on top of her and pinned her to the bed with the weight of his body before choking her.

37. The submissions otherwise listed the absence of additional factors the presence of which would have aggravated the seriousness of the offence. It does not follow that the offending “meets the bare elements of the offence”, as submitted by Mr Chen. As already noted, the injuries alone take it well out of that category.

38. Mr Chen made further submissions as to the circumstances of the offence which were, in large measure, overtaken by the offender’s evidence at the proceedings on sentence. As to a number of matters, he submitted that I would not accept the evidence of the victim in light of other evidence in the trial. For example, he submitted that the Court cannot sentence the offender on the basis that the victim was asleep at the time the choking commenced because other men in the room gave evidence that the victim was awake when the offender started interacting with her. I did not believe the evidence of those witnesses during the trial. I believed the evidence of the victim, who was an intelligent, articulate and careful witness. Incidentally, she did not say she was asleep when the choking commenced. She said she awoke to the offender lying on top of her. She described the struggle that ensued as she tried to get him off her. She said she was continually punching him and “that’s when he got the shits” and pinned her arms above her head before starting to choke her with one hand. I have no doubt she was very much awake and very afraid when the choking started.

39. The prosecution submitted that the offence is “above mid-range” having regard to the following facts and circumstances: a. The offence was an unprovoked attack on a sleeping female victim. b. The offence was committed in the context of a broader violent assault on the victim. c. The offence was committed while the victim was resisting physically, kicking, punching, and trying to push the offender off her. d. The offence was committed in circumstances where the offender was on top of the victim who was lying on a bed and was more objectively serious given the victim was in a difficult position from which to defend herself. e. The degree of pressure placed on the victim’s neck was to the extent that it restricted her airways and made it difficult for her to breathe. This is more objectively serious than the application of “any degree” of pressure to the victim’s neck, which would also suffice in establishing the elements of the offence. f. The neck injuries suffered by the victim – pain, neck swelling, scratches, and bruises. g. Defensive injuries suffered by the victim, including swelling to the knuckles. h. Other injuries suffered by the victim during the broader assault – bruises and abrasions to her arms and a bleeding nose. i. The offence was committed in circumstances where the offender removed the victim’s clothing, more objectively serious given the added degrading and humiliating nature of the offending.

40. Apart from (h), I accept that each of those matters is relevant to the assessment of objective seriousness of the choking offence. As to (h), I cannot exclude the reasonable possibility that the other injuries were caused later, after the choking. Accordingly, I have disregarded them for present purposes. I am satisfied beyond reasonable doubt of each of the other facts relied upon by the prosecutor. The victim was extremely vulnerable when the offending began, being asleep in a motel room in the presence of large, strong men she did not know. The choking was the culmination of a violent struggle and involved a significant degree of force which restricted the victim’s breathing for a period of time and caused swelling, redness and abrasions to her neck. In my assessment, having regard to the matters relied upon by the prosecution, the offence was one of considerable seriousness falling above the middle of the range. Circumstances of the offender

41. The offender did not seek a pre-sentence report. As already noted, he gave evidence at the proceedings on sentence. The prosecutor objected to parts of the defence case on sentence as being unproved or inadequately proved. On the whole, I consider the evidence in support of the subjective case to have been plausible and unsurprising. I will address any matters of particular significance in the discussion that follows.

42. The offender is 28. He was 27 at the time of the offence. He was born and raised in Tonga in a loving Christian family from a low socio-economic background. He is the youngest of nine children. His mother and eight siblings still reside in Tonga. His father is deceased.

43. The offender came to Australia in 2017 on a working visa to earn money for his family. He gave evidence that, since 2017, he has regularly sent money to his family in Tonga.

44. The prosecutor objected to the evidence relied upon to prove some of those payments. It must be said that the evidence, in the form in which it was provided, was unsatisfactory and did not support the offender’s oral evidence. The offender tendered five screenshots of email confirmations of the transfer of funds from him to his sister. The amounts varied and the dates were sporadic. In evidence the offender said he had sent between $500- $1,000 to Tonga every fortnight since 2017. When pressed by the prosecutor, the offender conceded that the amount he sends varies depending on his workload and may sometimes be less than $500.

45. It is not possible to make a firm finding as to the amount or frequency of funds transferred by the offender to family in Tonga. However, it is not inherently unlikely that he would be supporting family in Tonga. Furthermore, it is not difficult to accept that the family in Tonga would have been assisted and would have enjoyed an improved standard of living by receiving money from him.

46. The Court is required to consider the probable effect of a sentence on the offender’s family: s 33(1)(o) of the Crimes (Sentencing) Act. It does not follow that the sentence must be reduced if family hardship is established.

47. In some jurisdictions, it has been taken to be a requirement that exceptional hardship must be established before the court is to have regard to the probable effect that any sentence would have on any of the person’s family or dependants. That has not been the position in the Territory since 2005. In Director of Public Prosecutions v Ip [2005] ACTCA 24, the Court of Appeal at [60]-[61] said of the cognate provision in the Commonwealth Crimes Act: The mandate of the Commonwealth Parliament is quite clear: the sentencing court ‘must take into account’ the matters set out in subs 16A(2) of the Crimes Act 1914 (Cth), including ‘(p) the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants’. The contemplated taking into account of such factors must clearly be real and must occur in every case in which one or more of those factors exist. There is, with respect, simply no warrant for a sentencing court to presume judicially to qualify the clear parliamentary command by suggesting, as has been done, in R v Hinton (2002) 134 A Crim R 286, 293, that – The reference in s 16A(2)(p) of the Crimes Act 1914 (Cth) to the “probable effect that any sentence or order under consideration would have on any of the person’s family or dependants” should be read as if it were [preceded] by the words “in an exceptional case”: R v Togias (2001) 127 A Crim R 23. Indeed, this court would wish to specifically dissociate itself from the reasoning in R v Togias which gave rise to that suggestion (see Togias (supra) at 34-37). As R v Hinton stresses, each case will “to a very great degree depend upon its own facts”. So here. Of course, what weight a listed factor is to be given is a discretionary matter. In many cases, it will not be possible to give a family’s suffering much or any weight. But as a matter of the letter and the clear conceptual intendment of the Parliament, it must be anxiously considered in every case where it exists.

48. The decision in Ip was cited by Beech-Jones J in his dissenting judgment in R v Zerafa [2013] NSWCCA 222; 235 A Crim R 265 where his Honour expressed the view that any requirement to establish “exceptional hardship” before the probable effect of any sentence under consideration on the offender’s family or dependants could be taken into account was not supported by the language of the statute and that decisions that had held to the contrary were plainly wrong. That view has since prevailed in New South Wales, bringing that jurisdiction in line with the position in the Territory: Totaan v R [2022] NSWCCA 75; 108 NSWLR 17.

49. While the evidence on the issue of hardship was sparse, I am satisfied on balance that the offender has probably sent payments to his family as and when he could. I also accept, as submitted by the offender’s new counsel, Mr Robinson, that the offender’s family in Tonga would be adversely affected by the cessation of such payments which will be the inevitable result of any period of full-time imprisonment.

50. It has not been established that the hardship will be acute. I accept that it is a matter that mitigates the appropriate sentence to some extent, albeit limited.

Deportation

51. The offender asked the Court to have regard to the fact that, should he be sentenced to a term of imprisonment of 12 months or more, he would have a “substantial criminal record” within the meaning of s 501 of the Migration Act 1958 (Cth) and that, as a result, he would not pass the character test and would be liable to be deported.

52. The prosecutor submitted that there was no evidentiary basis for the submission and that it should be rejected. I consider that the Court can appropriately proceed on the basis contended for by the offender which, if not a matter for judicial notice, is at least within my own knowledge and experience.

53. The question, however, is what follows from that. The offender submitted that the Court could take this fact into account as a mitigating factor on sentence, citing the decision of the Court of Appeal in The Queen v Ruwhiu [2023] ACTCA 18 at [82]. The decision in Ruwhiu is not authority for the proposition that deportation is of itself a mitigating factor. In the passage relied upon by the offender, Loukas-Karlsson J said: There are a number of ACT Supreme Court decisions which reinforce the approach favouring deportation as a mitigating factor. The position in the ACT is that the prospect of deportation can be taken into account as a mitigating factor but not in a way designed to circumvent migration laws.

54. Taken alone, that passage may be read (as the offender has evidently read it) to mean that the bare fact that an offender might be deported as a result of a sentence imposed is of itself a basis on which the sentence can properly be reduced. However, from a careful reading of the relevant discussion as a whole, it is apparent that is not what her Honour meant. As her Honour noted at [83], the issue in Ruwhiu was “not the prospect of deportation per se, but rather ‘the burden that the prospects of deportation would impose on [the offender’s] imprisonment’”.

55. In a separate judgment agreeing with the orders proposed by Loukas-Karlsson J, Baker J explained at [151]: The sentencing judge only took into account “the burden that the prospects of deportation would impose on [the respondent’s] imprisonment”: Ruwhiu at [131]. In other words, the sentencing judge did not purport to mitigate the sentence on the basis that the respondent would in fact be deported. His Honour’s finding was limited to the subjective impact of the respondent’s apprehension that he might be deported. The Director did not allege that there was any patent error in this finding. (Emphasis in the original.)

56. In the present case, there was no evidence as to the subjective impact of any apprehension held by the offender that he might be deported. His evidence was silent on the issue. Accordingly, the prospect of deportation cannot be a mitigating factor in the present case. Furthermore, it would be inappropriate to modify the sentence I consider to be appropriate and proportionate so as to circumvent the operation of the Migration Act. Accordingly, I have not had regard to the impact of the sentence I propose to impose on the offender’s migration status.

Other matters

57. The offender has expressed no remorse. As already noted, he had the opportunity to do so when he gave evidence in the presence of the victim. He accepted in evidence that he choked the victim and so can be said to have accepted some responsibility for the offence. However, his evidence on that issue was peculiarly bland. He said nothing to indicate that he has the smallest insight into the likely impact of his conduct on the victim.

58. The offender has no criminal history and is not alleged to have committed any offences whilst on bail. I take that into account as some evidence of good character.

59. I also take into account the fact that the offender is a relatively young man. The principles to be applied in relation to sentencing young offenders are well known.

60. The offender tendered references from friends, family and other persons. Most of the references described his offending conduct as being out of character. They also referred to his financial support for his family and his strong Christian faith. A letter from his mother stated that he provided her “mostly every month with food and financial aid”. She said “no one can help and afford my needs except my son”. I have taken those references into account.

61. Other references were of negligible weight because they were written in ignorance of the offender’s offending.

62. The offender’s strong family support and support from his church are factors that suggest some basis for thinking that he is unlikely to reoffend. On the other hand, that is undermined by his lack of remorse and his failure to take any meaningful responsibility for his conduct. On balance, I do not think I can make any sensible finding one way or the other on the issue of prospects of rehabilitation.

No sentence other than imprisonment is warranted

63. Counsel for the offender initially submitted that the threshold in s 10 of the Crimes (Sentencing) Act (the requirement for the Court to be satisfied, having considered possible alternatives, that no other penalty is appropriate) was not met in this case. However, after the offender gave evidence, counsel resiled from that submission.

64. The parties provided references to comparable cases, noting the constraints on the use of such material. I have had regard to those decisions and the other authorities collected in the decision of Refshauge AJ in Bonfield.

65. I am satisfied that no penalty other than imprisonment is warranted and that the sentence must be substantial. Furthermore, I do not consider it appropriate to suspend the sentence. This was a violent, frightening attack on a vulnerable woman. There is no evidence of remorse and no evidence to support any firm conclusion as to the offender’s prospects of rehabilitation.

Sentencing purposes

66. The purposes of sentencing set out in s 7(1) of the Crimes (Sentencing) Act are to ensure that the offender is adequately punished for the offence in a way that is just and appropriate; to prevent crime by deterring the offender and other people from committing the same or similar offences; to protect the community from the offender; to promote the rehabilitation of the offender; to make the offender accountable for his or her actions; to denounce the conduct of the offender and to recognise the harm done to the victim of the crime and the community.

67. The offender relied on a number of authorities that speak to the hardship experienced by persons who serve terms of full-time imprisonment and the risk that such sentences may in fact be inimical to rehabilitation. I acknowledge the force of those remarks. However, it is generally accepted that rehabilitation begins with an acceptance of responsibility for the offending conduct. The course of these proceedings has given me no confidence that the offender is a good candidate for rehabilitation in the community. In the circumstances, I have placed greater weight on the purposes of deterrence, protection of the community, denunciation of the offender’s conduct and, most importantly, recognition of the harm done to the victim.

Time in custody

68. I revoked the offender’s bail after the jury gave its verdict on 27 September 2023. The sentence will be backdated to that date.

Orders (1) Seti Moala, I sentence you 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.

I certify that the preceding sixty-eight [68] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice McCallum Associate: Date: 7 November 2023