Director of Public Prosecutions v Matthews

[2019] VCC 1407

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01183

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALLAN MATTHEWS

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	29 August 2019
DATE OF SENTENCE:	29 August 2019
CASE MAY BE CITED AS:	DPP v MATTHEWS
MEDIUM NEUTRAL CITATION:	[2019] VCC 1407

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr A. McKenry
For the Accused	Ms F. Fox

HIS HONOUR:

1Allan Matthews, you have pleaded guilty to three charges to committing an indecent act with a child under 16 and one of sexual penetration of a child under 16.  You were 47 years old at the time of the commission of the offences.  The complainant, to whom I shall refer to as G, is now 13 years old and was about 11 years old at that time.

2The indictment reflects two separate incidents which are separated by some weeks between early June of 2017 and the end of that month.  Mr Prosecutor, have you settled on a pre-sentence detention period?

3MR McKENRY:  Sixty-five days, not including today.

4HIS HONOUR:  Thank you.  You are a long-time friend of G's father.  The two of you had met when you were both much younger men.  After years of study, you had joined the army, contact between the two of you had become intermittent.  You were the best man at his wedding.  By that time, you had left the navy, a period of estrangement ensued after G's older sister was born in 2001.  Just before or soon after G's birth, you and her parents resumed contact, due to personal circumstances.  You then in 2016 began visiting the family about once a fortnight for about a year before the offending occurred.  It was on one of those occasions in June of 2017 when you were visiting G's family home when the first three offences took place.

5The family were all in the lounge room watching television.  G was sitting on the couch with you.  She was wearing a onesie and was covered with a blanket.  Under the cover of the blanket you unzipped her onesie and put your hand under her clothing and rubbed her breast.  She tried to pull your hand out, but you put it back.  You then moved your hand towards her vagina and tried to touch it.  She again tried to pull your hand away, but you touched outside of her vagina under her clothing.  Her sister, brother and parents were in the room.  G got up and sat on the floor with her brother, having zipped up her onesie.  Sometime in the same month of June 2017, you again visited.  It was a Saturday and her whole family again was home watching TV in the lounge room.  Again, you were seated next to G on the couch.  Again she was wearing a onesie and was covered by a blanket.

6You unzipped what she wearing halfway, put your hand under her clothing on her chest area and rubbed her breast.  She was in shock and was frozen.  She could not say anything.  You then moved your hand to her vagina, touched it under her clothing.  You then inserted your finger into her vagina and moved it in and out.  In order to bring this to an end, G said she needed to go to the toilet.  You then zipped her clothing and she got up from the couch.  She later returned to the lounge room and sat with her mother.  At some point after these events, G told her parents about what you had done to her.  Before this, her mother had noticed the change in her demeanour.  The sense of humour having left her and that G would run off into her bedroom crying.  She was very distressed when reporting it to her parents.

7In October of that year, you were interviewed.  You blamed G for grabbing your hand and putting it on her chest, which you said occurred quite a number of times, to an extent that she gave up your resistance and would leave your hand there.  You told police that on more than one occasion, she put your hand in her panties.  That when you tried to pull your hand away, she would grab it and put it back there.  When asked where her you touched her vagina you said 'Possibly the entrance of her vagina.  I seem to recall possibly a fingertip'.

8This was a voluntary disclosure by you of the offence which is the basis for Charge 4 of sexual penetration and which would otherwise not have been, apart from your admission, been able to be laid, based on the statement and description of G in her VARE statement.  G did not make a victim impact statement, but I can reasonably infer, as indeed is the common experience in these matters in this court, that this conduct will have had a profound impact both physical, psychological and emotional on G.

9Such abuse is not only a fundamental interference with the physical integrity of a child's body and person, but is extremely confusing and damaging to feelings and thoughts of safety, security, protection and vulnerability.  Such conduct undermines the innocence and inner life of a child and often effects their mental health confidence, sense of trust and friendship, openness, school participation.  Their sense of fun and freedom, even in their very own home and elsewhere.  G's mother has provided a victim impact statement.  She writes of hers and her husband's shock and disbelief.  Their sense of trust has been irreparably rendered broken.  She describes G's emotions as being up and down.  The adjustment they have had to make as a family to deal with this matter is enormous.

10I consider your conduct very serious and aggravated by circumstances pertaining to it.  You not only betrayed the confidence and trust that G's family had reposed on you out of friendship and solidarity, at a time when you were in need of friendship, a supportive family environment, you committed these vile offences in their presence and in their home.  You did so in breach of their trust and friendship, your conduct escalating in gravity on two separate occasions in contraposition to a child who endeavoured to remove your hand from her, in contumacious insistence on gratifying your own sexual wishes. 

11Whilst recognising that on one level any offending of a sexual nature against a child is serious, such offending must be placed within a scale or spectrum of seriousness.  The court unfortunately sees very serious offending against children.  The offending here was distressing and intrusive, with a measure of physical coercion, or insistence.  But it must be put into and above perspective.  The seriousness should not be overstated. 

12In each case of two occasions, the offending was short lived.  The first event was not penetrative in nature.  Having acknowledged that these factors will be taken into account, I consider that your moral culpability is of a high order, deserving denunciation and just punishment.  The community looks to the court, as indeed does the victim and her family, to demonstrate the abhorrent nature of your conduct, with punishment which will be deterrent to all those who maybe like-minded to abuse and use the most vulnerable in our community, children, for their own base sexual desires and in that way, protect the community from such conduct.

13I take your plea of guilty into account.  I consider that it was an early plea.  An offer was made to prosecution authorities at the first committal mention.  Some negotiation followed and a committal was listed in June 2018 when you entered a plea on that day, upon a hand-up brief.  Your plea of guilty will reduce your sentence.  It has a utilitarian benefit of having avoided a distressing criminal trial.  I accept that it is accompanied by some regret and feelings of guilt and remorse.  Remorse is a feeling which probably forms more fully with the growing insight into your conduct.  The material contained in the record of interview and the reports made available to the court, indicate that your remorse while activated and expressed, is qualified by your lack of insight and understanding about your behaviour and its genesis, motives and impact.

14Although you professed to feel guilty in the interview, you describe your offending as the product possibly of the affection that the girls had shown and given to you.  Both during these answers and later, when discussing this with others, you have expressed an untenable attitude which includes attributing blame to the victim.  Moral responsibility is based primarily on a sense of agency as a prerequisite and underlies the expectation that individuals will be held responsible for their actions.  Though you appear to verbalise an incomplete form of self-agency, I can have no doubt that you were the only person responsible for this behaviour and you knew that what you were doing was wrong.

15I take your personal circumstances into account.  Your parents have passed way, you have no siblings, you were educated to Year 12, began an agriculture degree which you discontinued.  At age 23, you joined the navy where you received training and completed a naval marine and technical training, which allowed you to work on small boats and patrol boats.  You served in the Philippines around 1996 and there you were involved in a serious motor car accident.  Your leg was broken in 12 places, your hip was very badly damaged, your left hip was fractured and dislocated.

16Your left femur was fractured mid-shaft.  You left ankle was also damaged.  Treatment was compromised by infection which caused delay, leading to premature osteoarthritis of the hip.  You were flown back to Australia and treated in Darwin in New South Wales and then the Cerberus Navy Hospital where you spent several months. 

17Several surgical interventions were required and you unable to continue in naval service.  The incident aftermath continued to trouble you physically and psychologically.  The injuries have caused physical impairments, which restrict your movements, rendering walking painful with difficulties inflection of the knee, limited mobility, difficulty in sitting.  You have had four hip replacements or revision surgery, the latest in February 2019.  Your left leg is approximately 40 millimetres shorter than your right.  You use usually a single crutch for walking long distances and walking upstairs is difficult.

18You also have diabetes with medication prescribed for this condition, as well as for the orthotic pain.  You receive a veteran's disability pension.  Despite these physical difficulties, you have had a gainful employment, currently as the branch manager of a spare parts business since 2004.  You have a fiancé and what is your first significant relationship who resides in the Philippines.  You have adopted a seven year old daughter and send her a weekly allowance for her and for schooling of the child.  You speak daily and have known each other for about ten years.

19The outcome of these proceedings and the impact on these persons is of great concerns to you naturally, as was evident in the record of interview.  In 2015, your mother passed away.  You had cared for her for the last six to seven years of her life at home, during which time she suffered a number of strokes.  Her death has also had a great impact on you.  You are a competitive archer with hopes of joining a Paralympics squad and this matter has rendered you unable to compete in effect, or to train. 

20I take your background of service into account to your credit.  I take into account the effect on your mental psychological and physical wellbeing of the severe injuries suffered.  Often such physical damage translates, as it has in your case, into psychological and emotional trauma.  I take it into account when I go to consider the penalty to impose, and the impact which these aspects will have on your incarceration.  The impact will be substantial and some allowance needs to be made humanely for the fact that imprisonment will have a greater burden upon you than on an abled body prisoner.

21Your work history is to your credit also, as is your care for your mother.  I will take those matters into account.  The inability to train and compete is extra curial punishment, which I also take into account.  The opportunities to pursue the relationship with your partner and child will be effected and that is another matter I will take into account.

22A letter from Jennifer Hopkins described the period after your mother's death as one of disordered cluttered living in isolation and depression.  In that time you sought out the friendship of the victim's family.  It was recognised upon your plea by your counsel that the offending was brazen and opportunistic.  But where it was submitted your impoverished state of mind meant you were susceptible to inappropriate conduct in the face of even genuine and innocent affection, I have difficulty accepting that particular submission.

23You sought the comfort and warmth of family life and you shamefully abused the good and kind family environment, who offered you that welcome.  Your voluntary disclosure, as I have already stated in relation to the second more serious offence, warrants a substantial discount as well.  Importantly, you have no prior criminal history or subsequent matters.  You have received some treatment sessions by way of psychologist and have been assisted by a good friend to regain some semblance of stability and normality in your life, which hopefully will continue after you are released.  I take these protective factors into account.  The court received the report from Anne Matthews dated 19 June.  She is a forensic psychologist.  Her report covers your family, education and employment history, as I have outlined.  She found you depressed and anxious, with average cognition and insight, only partially present.  You feel angry and irritable, but with low risk of this type of reoffending.

24You lacked insight into why the behaviour proceeded, as well as a measure of victim blaming.  You are currently suffering from a major depressive disorder and symptoms of post-traumatic stress disorder.  She opines that because of this, you would currently meet the criteria for a major mental illness.  You do not present with indicators of sexual deviance.  Your poor self-awareness and apparent inability to form stable intimate physical psychosexual relationships, alcohol abuse as well as drug use amount to factors which make your rehabilitation more problematic, but which could and should be addressed with targeted sex offender treatment.  I agree with her assessment that time in reclusion will be onerous.

25Mr Daria Sisenko under the supervision of Pamela Matthews wrote a brief report about some three sessions you attended, between May and June of this year.  Cognitive behavioural therapy was introduced and you continued to assert on these occasions, that your fault was partial only, requiring further intervention in this field.  Cameron Dunkerley, a physiotherapist, provided a brief report to the court on the treatment of management currently undertaken for your injuries and how the prison environment may impact upon you.  I take these reports into account, as I do in relation to the report of Mr Peter McCombe, surgeon, who has managed your injuries for many years.  He describes your difficulties and considers that a prison environment will be difficult for you.  I take his report into account.

26I take into account the two letters received, one from Ms Hopkins, to which I referred before and another from Paul Langille.  Ms Hopkins has been your friend for fifteen years.  She comments on the out of character nature of the offences, your caring role with your mother, your isolation and depression, the impact of your injuries and the poor lifestyle which has afflicted you of late.

27Mr Langille's reference is dated 20 June 2019.  He has been a friend for over forty years.  Eighteen months ago you asked him to help you get your life back on track.  He assisted you greatly, both financially and emotionally.  He cleaned, painted and put the house back into a liveable state.  He withdrew his superannuation to assist you to secure your mother's estate.  He too is a pensioner and his ongoing support is a positive factor in your future.

28I have considered the sentencing snapshots, number 233 and 34, which were tendered, as well as the helpful selection of cases in relation to similar matters and I have considered each of them.  I will not require you to stand Mr Matthews.  On the charge of indecent act with a child under 16, Charge 1, you are convicted and sentenced to nine months imprisonment. 

29On the second charge, you are convicted and sentenced to twelve months imprisonment.  On the third charge, you are convicted and sentenced to nine months imprisonment.  On the fourth charge of sexual penetration of a child under 16, you are convicted and sentenced to three years imprisonment.  I order that one month on one, one month on three and two months on two be cumulative on Charge 4.  That makes a total effective sentence of three years and four months.  I order a non-parole period of two years.

30I declare 65 days as pre-sentence detention excluding today having been served and I will have that number noted at the records of the court.  But for your plea, I would have sentenced you to four years imprisonment, with a non-parole period of three years.  Are there any ancillary orders Mr Prosecutor?

31MR McKENRY:  Your Honour, the Sex Offenders Registration Act will apply and the reporting period for a single class 1 and one or more class 2 and even though there is three, it will only count as one because of the 24 hour.  Nonetheless it is life under s.34 (1) (c), sub-(2).

32HIS HONOUR:  Yes.  What the prosecutor has indicated is not part of the sentence as such, but it flows from the sentence in that sentences such as this and the charges upon you have been sentenced activates and brings into action the provisions of the Sex Offenders Registration Act.  That means that you will be a registered sex offender with significant obligations during the period of registration, which is the period of life.  There are a significant number of obligations which arises as a result of that, perhaps you could explain those to your client ‑ ‑ ‑

33MS FOX:  Yes, Your Honour.

34HIS HONOUR:  ‑ ‑ ‑ in due course, if they are not abided by upon his release.  The Act enables the authority to bring a matter to court for a breach of that registration regime and for penalties to be involved and imposed.  Yes, is there anything else?

35MR McKENRY:  No other ancillary orders are sought, Your Honour.

36HIS HONOUR:  Thank you Mr McKenry, thank you Ms Fox.

37MS FOX:  As the court pleases.

38HIS HONOUR:  Yes, yes Mr Matthews can be removed.

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