R v MATTHEWS No. SCCRM-97-296 Judgment No. S6555

[1998] SASC 6555

R V MATTHEWS

Court of Criminal Appeal
Coram: Doyle CJ, Olsson and Williams JJ

Williams J:

This is an appeal against sentence on two counts of indecent assault. 

On 29 September 1997, the appellant was found guilty by majority verdict of a jury in the District Court upon two counts of indecent assault, contrary to s56 of the Criminal Law Consolidation Act. Particulars in each case being that on 1 December 1996, near or at Davoren Park, the appellant indecently assaulted a boy called Alex, aged 12 years.

On 24 October 1997, a District Court judge sentenced the appellant to imprisonment for three years, six months and fixed a non parole period of 18 calendar months.  The sentencing judge declined to suspend the sentence. 

The appellant, born 29 December 1952, was aged 43 years at the time of the offences.  The victim, Alex, born 3 February 1984, is the son of one of the appellant's foster sons, Ricky.  The appellant is the Godfather to Alex. 

Although the appellant has known Alex all his life, there had not been contact between the two of them for many months prior to the date of the offences.  Alex who lived in foster care, was allowed to spend time with his father at Davoren Park.  Alex's mother lives in Queensland. 

On Sunday, 1 December 1996, Alex had stayed overnight, from the previous day, at his father's home at Davoren Park.  The appellant was an invited visitor on the Sunday.  He came over and offered to drive Alex to Smithfield to visit a friend of the appellants.  After returning with Alex from this visit, the appellant drove to the bank at Elizabeth City Centre in his utility.  He had Alex as his passenger.  On the way home, the appellant stopped the utility by the roadside in the Davoren Park area.  As they drove along, the appellant had been touching Alex's penis by putting his hand down the front of the victim's pants, inside his clothing.  The appellant then pulled down the victim's trousers and jocks and placed a condom on his penis and masturbated him.  That gave rise to one count of indecent assault.  Thereafter the appellant exposed his own penis and forced Alex to masturbate the appellant.  That act gave rise to the other count of indecent assault.  Thereafter the appellant drove Alex back to his father's home. 

The appellant had a history of involvement of some 20 years in welfare work and in giving voluntary assistance.  He was involved in founding and setting up various self-help organisations to assist unemployed and others in need.  He was a founding member of Shaun and Norwood Community Service and an organisation called Job Seek.  He was active in a group called South Adelaide Unemployed Persons Association.  He was involved in the establishment of an information resource centre at Mount Barker.  He worked on a voluntary basis with Kensington and Norwood Housing Co-operative and he has done work with Family and Community Services.  I mention these matters individually because it does appear that much can be said to the appellant's credit as to his good character.  The sentencing judge stated that he made allowance for the appellant's previous good character and that otherwise he would have imposed a sentence of four and a half years imprisonment. 

The sentencing judge considered that the victim had been put at risk of contracting the sexually communicable disease from which the appellant suffers.  This was apparently a reference to the fact that the appellant is HIV positive.  In fact, as the Director of Public Prosecutions concedes, there is no evidence that the victim was placed at risk by the appellant's actions in this behalf. 

The sentencing judge declined to act upon the contents of the Victim Impact Statement.  The victim has lived a very troubled life and the trial judge was not prepared to accept that the offences had the effect upon the victim as claimed by him.  The victim says that it was his idea to invite the appellant to come over to his father's house on 1 December 1996 and he suggested to his father, Ricky, that the appellant should be invited to call over.  The victim said that he ‘sort of liked Tom’ but complained to police of an encounter with Tom earlier that year. 

Both the victim and his father knew that the appellant was a self-confessed homosexual and it was against that background that the appellant was invited to come over on the day in question. 

After the incident, Alex's father returned him to the foster parents.  Later that day the foster parents took Alex to a rodeo at Globe Derby.  The appellant went along too.  Alex went with the appellant in his utility.  On the statement of Alex's foster mother, it seems that Alex wanted to be with the appellant that afternoon. 

The offences only came to light in the course of Alex being questioned on 3 December 1996 by his foster mother about his behavioural problems which led to his suspension from school that day. 

The sentencing judge had before him a report from an officer of FACS, which outlines Alex's behavioural problems, particularly his preoccupation with sexuality and his attempts to engage other young people, both male and female, in sexual activity.  This may help to explain why Alex was still keen to be with the appellant on the afternoon of 1 December 1996, notwithstanding the indecencies to which he was subject earlier that day. 

The sentencing judge described the offences as committed in breach of trust reposed in the appellant by the victim's father.  I do not think that this case can be viewed as the ordinary case of breach of trust towards a young person.  It seems that the victim's father encouraged the appellant on that day to spend time with the victim.  The victim was the overnight responsibility of his own father who allowed the victim to be alone with the appellant.  That, of course, does not excuse what happened but in this respect I do not see the facts to be in the same light as did the sentencing judge. 

The victim comes from an unfortunate and troubled background in which he has demonstrated his unreliability.  Unfortunately the court is left without any satisfactory material, beyond common experience, to assess the likely impact of the appellant's behaviour on a 12 year old boy, in this case, one who is sexually precocious. 

The appellant was entitled to require his guilt to be established before a jury and in the sentencing process he is not to be disadvantaged on that account.  However, he cannot claim any discount for a plea.  Moreover, there is no evidence of contrition and this is, of course, a matter of concern. 

Mr Rofe QC, the Director of Public Prosecutions, has acknowledged that this sentence should be reduced.  I am persuaded that this court should interfere.  The sentence could only be justified on the basis that the appellant had put Alex at risk of disease, combined with a breach of trust.  The former element is not present.  The latter element is not one which I would have given weight in the particular circumstances which I have described. 

In my opinion, the appeal against sentence should be allowed and there should be substituted one sentence of imprisonment of 20 months, with a non parole period of nine months.  I would not suspend the sentence. 

Doyle CJ:

I agree with Williams J, that the appeal should be allowed.  And I agree with the sentence proposed by Williams J. 

In my opinion, the sentence imposed was too high.  The offence is a serious one, it is also quite prevalent.  The protection of children from such conduct and the need to deter potential offenders both require a firm response from the courts to this offence.  However, the sentence appears to be out of line with the sentences in other relevant cases drawn to the court's attention. 

I also consider that the appellant's previous good character should have led to a greater reduction in the head sentence than the District Court judge allowed.  I consider that there are good prospects that the appellant will not offend again.  His good record suggests that he is a good candidate for parole.  For that reason it is appropriate to fix a lower proportion than usual, but the District Court judge also fixed a relatively low non-parole period and I agree with that approach.  I would not suspend the sentence, the offence is, in my opinion, too serious for that to be done very often in the case of this offence; as well its prevalence means that a clear message must be given to the community that this is an offence likely to attract an immediate custodial penalty. 
The appellant's good character and the prospects of him reforming are entitled to weight, but in the end I am not persuaded that the sentence should be suspended.  For those brief reasons I agree with Williams J. 

OLSSON J:

I agree with what has fallen both from the Chief Justice and from Williams J. 

DOYLE CJ:

Accordingly the orders of the court are as follows: Order:

1. appeal allowed;

1. set aside the sentence imposed by the District Court;

1. substitute a single sentence of 20 months imprisonment and in relation to that sentence fix a non-parole period of 9 months imprisonment;

1. order that the head sentence and non-parole period commence from 24 October, 1997.