CONTENT WARNING: This article refers to an alleged sexual assault.
The ACT’s top judge said the law required her to ignore how a woman had been dealt an “extraordinary injustice” when sentencing the man who attacked her to two years’ jail.
Although they were acquitted of the alleged rape, Moala was found guilty of choking the woman.
However, while the trial’s jurors had heard his defence team suggest the woman hadn’t had sex with him during the incident, at the sentencing hearing, Moala claimed they had.
His lawyer, Edward Chen, asked him what he had been thinking about his victim’s state of mind when he had been holding her down during the incident.
“We were having sex,” he told the court on 17 October.
When handing down his sentence on Monday (30 October), the ACT Supreme Court’s Chief Justice Lucy McCallum said while an “extraordinary turn of events” had taken place in the sentencing hearing, she had to largely ignore them.
“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,” she said.
“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.
“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.”
She said the principle of double jeopardy meant that he could not face another trial or be punished for the alleged sexual offences that he had been found not guilty of, even though his defence had been “conducted on a false basis”.
Due to the jury’s verdicts, she said she had to sentence him on the basis that there was a violent struggle between him and the woman that culminated in him choking her, but there was no sex.
“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,” Chief Justice McCallum said.
She also said she was not allowed to consider the impact of this development on the woman.
“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,” she said.
“But I am required to ignore that fact in sentencing the offender.”
She also said the only rational explanation for the jury’s verdicts was that they had a reasonable doubt as to whether any sexual intercourse occurred between the victim and Moala.
Chief Justice McCallum said the woman had given a “harrowing account” about how she had woken up at the motel to find Moala on top of her, then tried to kick him off and punched him, but “he just kept saying that he was like Spider-Man”.
He grabbed her arms and pulled them above her head to restrain her, then started choking her and holding her face, making it hard to breathe.
A doctor, who saw the woman hours later, noted she was left with swelling and abrasions to her neck, as well as bruises to her arms and swelling to her knuckles.
Moala was born in Tonga and came to Australia on a working visa in 2017. Since then, he has sent money to support his family back home.
He had no other criminal history and is young, while references described his offending as out of character.
But the chief justice said a substantial period of imprisonment was needed.
“This was a violent, frightening attack on a vulnerable woman,” she said.
“There is no evidence of remorse and no evidence to support any firm conclusion as to the offender’s prospects of rehabilitation.”
He was sentenced to a total of two years’ jail with a non-parole period of one year.
As his sentence was backdated to account for time served, he can be released from custody in September 2024.
If you or someone you know needs help, you can contact 1800RESPECT, the national domestic and sexual violence support service, by calling 1800 737 732 or by visiting 1800respect.org.au.