R v Matthews

[1993] QCA 392

[1993] QCA 392

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 307 of 1993

Brisbane

[R. v. Matthews]

BETWEEN

T H E     Q U E E N

v.

COLIN HENRY MATTHEWS

The President
                  Mr Justice McPherson
                  Mr Justice Thomas

Judgment delivered 14/10/03

Reasons for judgment by the Court

APPLICATION GRANTED.  APPEAL ALLOWED AND SENTENCES BELOW SET ASIDE.  IN LIEU THEREOF SENTENCES OF IMPRISONMENT FOR SIX MONTHS ON EACH COUNT, TO BE SERVED CONCURRENTLY.

CATCHWORDS    CRIMINAL LAW - SENTENCE - Indecent assault - Whether manifestly excessive.

Counsel:     Ms. K. Wenck for the applicant

Mr P. Ridgeway for the Crown

Solicitors:Legal Aid Office for the applicant

Director of Prosecutions for the Crown

Hearing Date: 12October1993
IN THE SUPREME COURT

OF QUEENSLAND

C.A. No. 307 of 1993

BETWEEN:

T H E     Q U E E N

v.

COLIN HENRY MATTHEWS
  (Applicant)

REASONS FOR JUDGMENT - THE COURT

Delivered the Fourteenth day of October 1993

Colin Henry Matthews was convicted at his trial in the District Court at Brisbane of three counts of indecent assault committed on 16 February 1993.  In respect of each offence he was sentenced to imprisonment for one year to be served concurrently.  This is his application for leave to appeal against sentence.
     The complainant was a married woman.  Her age does not precisely appear but it is reasonable to infer she was young.  A few days before the incidents in question she had begun working for a firm of distributors at an office at Virginia.  In the course of her duties she met the applicant, who had previously been employed by the same firm, and who was helping her learn the office books and computer before starting a new job elsewhere. 
     On the day of the offences, the office manager was absent, and the complainant was alone in the office.  The applicant arrived and began to discuss the work with her.  He sat in a chair next to hers and continued to help her and to make suggestions about how she should set up the books.  Suddenly he started kissing on her on the lips and the cheeks.  To do this he leaned over her, keeping her pinned in her chair.  She protested and tried to push him away; but he continued to kiss her, saying that he knew she wished to have sex with him.  Despite her efforts, he succeeded in grabbing her breasts both outside and inside her clothing and attempted to put his hands down her pants.  She was wearing a loose fitting pant suit with a V-shaped neck, and elastic topped slacks with a loose belt.
     Eventually the applicant desisted, went to the office kitchen nearby, and made some coffee.  He came back to where the complainant was and then began kissing her again and grabbing her breasts.  She began crying and he left her alone, apologising to her in a way that she thought "very sincere".  She went out to the kitchen for a glass of water.  The applicant followed her and pinned her against the wall in the corner of the kitchen using his body weight to keep her there.  He kept grabbing at her breasts and put his hand down her pants and touched her inside her vagina; at the same time he was saying that he knew she wanted to have sex with him, while she insisted she did not.
     The telephone rang and she answered it.  It turned out to be his new boss who was calling, and she gave the telephone over to him to answer.  After speaking to his boss, the applicant put the telephone down and left.  She then telephoned her doctor and her parents.
     It was submitted that the sentence was excessive.  However, it was also accepted that the applicant had chosen an occasion when he knew she would be alone in the office, which was some distance away from where others might have heard her if she cried out.  There was, his Honour concluded, an element of "pre‑planning" in what the applicant did.  She had previously told him of a marital problem she was having, and he knew that at the time she was "vulnerable".  He used a slight degree of force to carry out his purpose, and persisted with it more than once despite her resistance and her protests.
     When all this is said, however, an effective sentence of imprisonment for a year is a heavy one.  The applicant is a married man, supporting a wife and a 15 year old son of an earlier marriage, and living in a house that is mortgaged.  He is 33 years old with no previous convictions of any kind, and has a continuous work record following after a period of army service of some nine years when he was a young man.  It was right for the judge to take a serious view of the offence and to bear in mind the need for deterrence; but, having regard to all the circumstances mentioned, we consider the sentence to be excessive.
     The application will be granted, the appeal allowed, and the sentences reduced to imprisonment for six months on each count, to be served concurrently.